Soto v. United States Department of State , 118 F. Supp. 3d 355 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
MAURICIO ROJAS SOTO, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 14-00604 (RDM)
)
U.S. DEPARTMENT OF STATE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
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.
1
I. BACKGROUND
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)”). 1 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.
1
To avoid confusion and burdening those without ready access to a copy of the Immigration and
Nationality Act (“INA”), the Court will cite to the provisions of the immigration law as codified
in the United States Code, and not to the distinct sections of the INA. Thus, for example, the
Court will cite to 8 U.S.C. § 1182, rather than INA § 212, and to 8 U.S.C. §§ 1201 & 1202,
rather than INA §§ 221 & 222.
2
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. 2 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
2
The initial FOIA request referred to Babella Rojas Sierra, rather than Isabella Rojas Sierra.
3
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 (1978). It embodies a “general philosophy of full agency disclosure.” United States Dep’t
of Defense v. FLRA, 510 U.S. 487, 494 (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).
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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 (D.C. Cir. 2003)
(quoting Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (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 (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 (D.C. Cir. 1991), and an index of the information
withheld, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973); Summers, 140 F.3d at
1080 (explaining that to carry its burden, agency that declines to produce a requested document
“must submit a Vaughn index to explain why it has withheld information.”).
II. DISCUSSION
Plaintiffs contend that the Department’s response to their FOIA request was inadequate
for several reasons. First, Plaintiffs argue that the Department has not demonstrated that it
adequately searched for documents responsive to the query. Second, they argue that the
Department improperly invoked FOIA Exemption 3 in declining to produce records relating to
the government’s conclusion that Mauricio Rojas Soto was involved in drug trafficking and
records relating to the revocation of Nathalia Rojas Sierra’s student visa. Third, Plaintiffs
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contend that the entry of Mr. Soto’s visa denial letter into the record of this case constituted a
“public disclosure” of the records Plaintiffs seek, and that, as a result, the Department has waived
any otherwise applicable FOIA exemptions. Finally, they maintain that the Department has
failed to demonstrate that it fully complied with its duty to segregate portions of documents
exempt under FOIA from the portions subject to release. The Court will address each issue in
turn.
A. The Adequacy of the Department’s Search for Records
Plaintiffs first contend that the State Department failed to conduct an adequate search for
responsive records. In general, in responding to a FOIA request, an agency must conduct a
search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To establish that a search was adequate, the
agency is required to “show that it made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Negley v. FBI, 658 F. Supp. 2d 50, 56 (D.D.C. 2009) (quoting Oglesby v. U.S. Dept. of Army,
920 F.2d 57, 68 (D.C. Cir. 1990)). The agency, however, is not required to demonstrate that
each and every responsive document was actually located or that no other relevant documents
could possibly exist. Perez-Rodriguez v. U.S. Dep’t of Justice, 888 F. Supp. 2d 175, 182 (D.D.C.
2012) (citing Weisberg, 705 F.2d at 1351). Nor must an agency search every record system
under its control, see Cunningham v. U.S. Dep’t of Justice, 961 F. Supp. 2d 226, 236 (D.D.C.
2013) (citing Ogelsby, 920 F.2d at 68), or release records or documents that are not under its
possession or control, see Lewis v. U.S. Dep’t of Justice, 867 F. Supp. 2d 1, 13 (D.D.C. 2011);
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 138 (1980) (“possession
or control is a prerequisite to FOIA disclosure duties”).
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To make the requisite showing, the agency must submit “[a] reasonably detailed affidavit,
setting forth the search terms and the type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68.
This allows “a FOIA requester an opportunity to challenge the adequacy of the search.” Id. The
affidavit must be submitted by an agency official with personal knowledge of the procedures
used in handling FOIA requests and familiarity with the documents in question. See Barnard v.
Dep’t of Homeland Security, 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (quoting Madison Mech.,
Inc. v. Nat’l Aeronautics and Space Admin., No. 99-2854, 2003 WL 1477014, *6 (D.D.C. Mar.
20, 2003)). The declarant is not required, however, to have personally participated in the search
for records. Barnard, 531 F. Supp. 2d at 138.
Here, the State Department has submitted the Declaration of John Hackett (“Hackett
Declaration”) (Dkt. 12-2). Hackett is the Acting Director of the Office of Information Programs
and Services (“IPS”) for the Department, and attests that he is “the Department official
immediately responsible for responding to requests for records under” FOIA. Dkt. 12-2 ¶ 1. He
declares that he has knowledge of the facts in his declaration based on his “personal review of
the records in the case file” and information provided to him in the course of his official duties.
Id. He further declares that, upon receiving Plaintiffs’ FOIA request, the Department evaluated
the request to determine which “offices, overseas posts, or other records systems within the
Department may reasonably be expected to contain the records requested,” id. ¶ 20, and that “the
Department conducted a search of all components reasonably likely to contain records
responsive to Plaintiffs’ request,” id. ¶ 49. In particular, the Department determined that it was
“reasonably likely” that responsive documents might be found in the Central Foreign Policy
Records, the Office of Visa Services, and the U.S. Embassy in Bogota, Colombia. Id. ¶ 22. The
7
Hackett Declaration then provides a detailed explanation of the records maintained in each of
those locations and how the Department searched those records, including the databases searched
and search terms used. See id. ¶¶ 23-28.
The Hackett Declaration explains that trained analysts conducted full-text searches for
records containing any of the Plaintiffs’ names in the Central Foreign Policy Records (“Central
File”), which is the Department’s “centralized record system.” Id. ¶ 23. That search returned no
results. Id. ¶ 25. Analysts also conducted a full-text search of the Plaintiff’s names in the
Consular Consolidated Database (“CCD”), which is the database maintained by the
Department’s Office of Visa Services, and searched for paper records maintained by the Office
of Visa Services. Id. ¶¶ 27, 28, 30. Those searches returned 132 responsive records. Id. ¶ 28.
Finally, the staff of the Consular Section at the United States’ Embassy in Bogota searched their
electronic and paper files for all records related to Plaintiffs. Id. ¶ 30. The staff located no
responsive records, but also noted that pursuant to State Department policy, any relevant records
would have been sent to a component of the Office of Visa Services and would have been
scanned into the CCD; accordingly, any documents generated by the U.S. Embassy in Bogata
would have been included in the search of the records maintained by the Office of Visa Services.
Id. ¶ 30.
Plaintiffs nonetheless argue that the Department’s search was inadequate because “none
of the described systems of records and/or search methods were designed to locate and identify
the requested records.” Dkt. 19 at 4. Most clearly, Plaintiffs contend that the Hackett
Declaration is deficient because the Department was aware “that the primary reason for the
plaintiffs’ FOIA request was to ascertain what records the consular officer was relying upon to
reach the conclusion that Mauricio Rojas Soto had” violated the drug law, id. at 4, yet the
8
declaration fails to explain whether and how “records of Controlled Substance Act violations are
entered into any” of the Department’s systems of records, Dkt. 19 at 3. Although less clear,
Plaintiffs also seem to argue that had the Department used the search term “Mauricio Rojas
Soto” in conjunction with the term “212(a)(2)(C)(1)”—rather than simply using the Plaintiffs’
names—records should have surfaced relating to the Department’s conclusion “‘that he had
engaged in or aided and abetted the illicit traffic of controlled substances.’” Dkt. 15-1 at 5.
These arguments are unpersuasive. Plaintiffs requested the Department’s documents “on
the referenced requesters”—that is, Plaintiffs—and “specifically request[ed] records which
would be relied upon by [the Department]” to deny visa applications for the Plaintiffs. Dkt. 5 at
5. The Hackett Declaration explains that the Department identified the systems of records
“reasonably likely” to contain the requested material and thoroughly searched both electronic
and paper records for documents related to Plaintiffs. Dkt. 12-2 ¶ 22. Plaintiffs have neither
identified any other locations or databases that the Defendant should have searched nor provided
any basis to question the reasonableness of the Department’s identification of potentially relevant
records systems. See Dkt. 19 at 3-4. To the extent Plaintiffs suggest that the Department should
have used conjunctive searches rather than simply searching for documents containing the
Plaintiffs’ names, such a search would have revealed fewer records than those the Defendant
actually produced. Although Plaintiffs contend that a consular official “must have relied on
records provided by another United States agency” to conclude that Mauricio Rojas Soto
violated the Controlled Substance Act and seek an explanation of “what system of records would
the consular officer have searched” to conclude that Mr. Soto had violated the Controlled
Substance Act, Dkt. 19 at 3, FOIA merely requires an agency to describe what it did to search for
records in response to a FOIA request—not to describe how it originally located records relied
9
upon in making an administrative decision. The Hackett declaration describes what the
Department did to locate potentially responsive records in its files. Moreover, to the extent the
Plaintiffs seek documents maintained in the files of other agencies, an agency does not have a
duty to release records or documents that are not under its control or possession. Lewis v. U.S.
Dept. of Justice, 867 F. Supp. 2d 1, 13 (D.D.C. 2011).
Plaintiffs’ dissatisfaction with the Department’s search, moreover, seems to turn on the
proposition that the Department must have some records that relate to why it believed that
Mauricio Rojas Soto was involved in drug trafficking. But this is not a case where the agency’s
search has come up empty. The Department located over a hundred responsive documents.
Although the vast majority of those documents were not produced—or were produced in
redacted form—the question whether an agency has properly withheld documents pursuant to a
FOIA exemption is distinct from the question whether the agency’s search was adequate.
Plaintiffs also contend that the search described in the Hackett Declaration does not
contain “the information set forth in” the declaration in Darnbrough v. U.S. Dep’t of State, 924
F. Supp. 2d 213 (D.D.C. 2013), another case in which a plaintiff sought records in the custody of
the Department of State. Dkt. 15-1 at 4-5. In that case, however, the Department’s affidavit
described a search that was narrower than the search that was undertaken in this case; in
Darnbrough, the Department submitted an affidavit describing one database (the CLASS
database), which—as the Hackett Declaration explains—is included within the broader CCD
database that the Department searched in response to Plaintiffs’ request here. See Dkt. 18 at 3-4.
In other words, the Agency’s search of the CCD database—which resulted in no results—would
have returned any responsive documents contained in the CLASS database.
10
Against that background, it is not surprising that the Hackett Declaration includes less
detail regarding the CLASS database than the Department provided in the Darnbrough case.
Here, the Department did provide substantial detail regarding the records systems that it
searched. The Hackett Declaration explains, for example, that the CCD database contains
“[m]ost visa-related records,” and that it is a consolidated system “that holds all of the current
and archived data entered by consular officers and U.S. embassies and consulates around the
world.” Dkt. 12-2 ¶ 27. Of particular relevance, these records include documents pertaining to
“nonimmigrant visa[s]” and “the visa revocation system,” along with the CLASS information
discussed in the Darnbrough case. Id. The declaration also describes the Central Foreign Policy
Records, or Central File, which is “the Department’s centralized records system and contains
over 30 million records of a substantive nature.” Id. ¶ 23. According to the Hackett Declaration,
the Central File contains, among other records, telegrams and correspondence between the
Department and foreign governments and other federal agencies. Id. Finally, the declaration
describes the overlap between records maintained at the Kentucky Consular Center and the CCD,
and it explains what was done to search for paper and electronic records at the U.S. Embassy in
Bogota, Columbia. Id. ¶ 30.
Based on this undisputed record, the Court finds that both the Department’s search and its
description of the relevant record systems were sufficient. The Department, accordingly, has met
its burden to “show that it made a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the information requested.”
Oglesby, 920 F.2d at 68.
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B. Applicability of FOIA Exemption 3
The only FOIA exemption that the Department relied upon in redacting or declining to
produce the responsive documents was Exemption 3. That exemption provides in relevant part
that agencies need not disclose records that are “specifically exempted from disclosure by statute
. . . if that statute (i) requires that the matters be withheld from the public in 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)(A). The State Department
claims that the documents that it redacted or declined to produce are exempt from disclosure
because they are covered by “a statute,” 8 U.S.C. § 1202(f), which provides that “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.” 8 U.S.C. § 1202(f) (“section 1202(f)”). The Court of Appeals has squarely held
that section 1202(f) is a statute covered by Exemption 3 and that, accordingly, records subject to
8 U.S.C. § 1202(f) are exempt from disclosure under FOIA. Medina-Hincapie v. Dep’t of State,
700 F.2d 737, 744 (D.C. Cir. 1983); see also Darnbrough, 924 F. Supp. 2d at 217. Section
1202(f) “has been interpreted,” moreover, “to include not only information supplied by the visa
applicant, but also any ‘information revealing the thought-processes of those who rule on the
application.’” Id.
“An agency that has withheld responsive documents pursuant to a FOIA exemption can
carry its burden to prove the applicability of the claimed exemption by affidavit” or declaration.
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009). In order to prevail, the agency
must describe “the documents and the justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically falls within the claimed exemption,
12
and are not controverted by either contrary evidence in the record nor by evidence of agency bad
faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The agency must
show that “each document that falls within the class requested either has been produced, is
unidentifiable, or is wholly [or partially] exempt” from disclosure under FOIA. Goland v. CIA,
607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks and citation omitted). Although
the Court reviews the Agency’s justifications for withholding responsive records de novo,
“[u]ltimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75
(D.C. Cir. 2006)). Thus, as Plaintiffs correctly observe, an agency that seeks to invoke a FOIA
exemption “‘must append a declaration to its motion for summary judgment that provides
detailed and specific information demonstrating that material withheld is logically within the
domain of the exemption claimed.’” Dkt. 15-1 at 4-5 (quoting Cottons v. Reno, 193 F.3d 550,
556 (D.C. Cir. 1999) (internal quotations omitted)). It is unclear, however, what conclusions
Plaintiffs would have the Court draw from this premise.
Although it is not entirely clear, Plaintiffs first seem to argue that the Department’s
failure to provide “evidence that Mauricio [Rojas Soto] had engaged in or aided and abetted the
illicit traffic of controlled substances” somehow precludes application of Exemption 3. Dkt. 15-
1 at 5. That contention, however, misunderstands Exemption 3 and section 1202(f), and, indeed,
would stand both provisions on their heads. The government need not produce the very
information protected from disclosure in order to demonstrate that the relevant exemption
applies. Rather, under Exemption 3 and section 1202(f), the Department need only demonstrate
with the requisite detail that the undisclosed information “pertain[s] to the issuance or refusal of
visas or permits to enter the United States,” 8 U.S.C. § 1202(f). For the reasons discussed below,
13
the Court concludes that the Department’s submission requires further clarification. But that has
nothing to do with the Department’s failure to proffer evidence relating to illicit drug trafficking.
Plaintiffs also contend that any protection that FOIA and section 1202(f) might otherwise
afford the requested materials does not apply because the records have already, according to
Plaintiffs, entered the public domain. Their theory appears to be that because the Department’s
summary judgment submission disclosed a copy of the letter denying Mauricio Rojas Soto’s visa
application and copies of the revoked or cancelled visas of his family members (Dkt. 13-1 at 22,
36-39), the Department has waived any FOIA exemptions applicable to these actions. See Wolf,
473 F.3d at 378.
This argument also bears limited weight. It is true that, under the “public domain
doctrine, materials normally immunized from disclosure under FOIA lose their protective cloak
once disclosed and preserved in a permanent public record.” Cottone, 193 F.3d at 554. Because
the purposes of FOIA are not served where the relevant information is already “truly public,”
application of the FOIA exemption “cannot fulfill its purposes.” Niagara Mohawk Power Corp.
v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999). The public domain doctrine,
however, comes with significant limitations. As an initial matter, to avoid putting the
government to the “daunting task of proving a negative,” the party seeking to invoke the public
domain doctrine “bears the initial burden of production.” Cottone, 193 F.3d at 554. To carry
that burden, the plaintiff must “point[ ] to specific information in the public domain that appears
to duplicate that being withheld.” Afshar v. Department of State, 702 F.2d 11125, 1130 (D.C.
Cir. 1983). The fact that “similar information” is already public “does not suffice”; the “specific
information sought . . . must already be in the public domain by official disclosure.” Wolf, 473
F.3d at 378 (emphasis in original). In this context, where Plaintiffs rely on material disclosed in
14
a judicial proceeding, that means that they must show that the government has previously made
the “exact” documents or information at issue part of “a permanent public record.” Cottone, 193
F.3d at 554 (quoting Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1280-81 (D.C. Cir.
1993)).
To the extent the Department withheld the “exact” documents that it has now submitted
as part of the “permanent public record” in this proceeding, Plaintiffs are correct that the
Department has waived any exemption through its disclosure. Plaintiffs, however, previously
received some or all of those materials—such as the letter addressed to Maurucio Rojas Soto—
and, in any event, have now certainly received the materials that the Defendants filed during this
litigation. Accordingly, with respect to the records actually entered into the record in this case—
even if they were previously withheld—no further relief is required.
That, of course, is not what the present dispute is about. With respect to the records that
Plaintiffs seek to discover through this action, however, they have failed to point to any public
records that duplicate those records. The fact that the Department referred to the existence of
certain records is plainly not enough to invoke the public domain doctrine. Indeed, if it were,
virtually every Vaughn index would effectively resolve the case against the government. Thus,
with the exception of the actual document submitted along with the Department’s motion for
summary judgment, Plaintiffs have failed to carry their burden of demonstrating that the records
are already public. If the Department did withhold any of the records attached to its motion,
however, it should—although perhaps unnecessary—produce those materials to Plaintiffs
pursuant to their FOIA request, and it should modify its Vaughn index to reflect this fact.
Plaintiffs’ contention that the Department wrongfully withheld information relating to the
revocation of Nathalia Rojas Sierra’s student visa raises a more substantial issue. Plaintiffs
15
argue that section 1202(f) protects only records “pertaining to the issuance or refusal of visas or
permits to enter the United States,” see Dkt. 15-1 at 11 (arguing that “revoked visas are not
subject to 8 U.S.C. § 1202(f)”), and in their view, revocation of a visa does not “pertain” to these
distinct immigration actions and documents pertaining to revocation thus must be disclosed
under FOIA, id. at 11-12. The Department, in turn, responds with two arguments. It argues,
first, that section 1202(f) is sufficiently capacious to reach revocation proceedings, Dkt. 17 at 11-
12, and, second, that because the revocation of Nathalia Rojas Sierra’s student visa was tied to
the denial of Mauricio Rojas Soto’s visa application, the revocation of her visa necessarily
overlaps with the Department’s “issuance or refusal of” his visa, id. at 12.
The question whether section 1202(f) applies to revocation proceedings is not well-
settled. Within this district, two decisions have touched on the issue. In one case, as in this case,
the plaintiff sought “the reasons and evidence related to the refusal of his . . .Visa application, as
well as the reasons and evidence relating to the revocation of a U.S. Visa.” Beltranena, 821 F.
Supp. 2d at 177. There, the court held that the State Department properly invoked Exemption 3
and section 1202(f). In contrast, in the principal case relied upon by Plaintiffs, the court
considered whether a record included in a database “used to determine visa eligibility” could be
withheld “simply by virtue of where it is stored,” Darnbrough, 924 F. Supp. 2d at 217,
“regardless of whether [that record] relates to the issuance or refusal of visa applications,” id. at
218. In the course of concluding that the record was not subject to disclosure, the court observed
that section 1202(f) “does not concern other aspects of visas or immigration, such as visa
revocations.” Id. at 218.
The applicability of section 1202(f) to visa revocations was explored in greater detail in
El Badrawi v. Department of Homeland Security, 583 F. Supp. 2d 285 (D. Conn. 2008), which
16
addressed, among other things, whether the plaintiff was entitled to obtain records from the State
Department relating to the revocation of his visa. Relying on the “plain language of the statute
and the interpretative doctrine of expressio unius,” the court held that the section 1202(f) protects
only materials pertaining to the “issuance” and “refusal” of visas, and that the “revocation” of a
visa is neither “issuance” nor “refusal.” Id. at 311. The El Badrawi court also relied on
subsequent legislative history, where Congress amended the Immigration and Nationality Act
(“INA”), including section 1202(f), while continuing to treat visa revocation as distinct from
“issuance” and “refusal.” Id. at 311-12. To bolster this conclusion, the court noted, for example,
that visa issuance and revocation are addressed in separate sections of the INA. Id. at 312.
In reviewing these precedents and the text of the INA, the Court is not yet convinced that
visa revocations fall beyond the reach of section 1202(f). Indeed, 8 U.S.C. § 1201, which
authorizes consular officers in their discretion to revoke visas, is entitled “Issuance of visas,” and
that section addresses the authority of consular officers relating to issuing visas, “nonissuance,”
and revocation. See 8 U.S.C. §§ 1201(g) (“Nonissuance of visas or other documents”), (i)
(“Revocation of visas or documents”). Section 1202, in turn, is entitled “Application for visas,”
and establishes the procedures that effectuate the authorities granted in section 1201. The
provisions, accordingly, appear to work together in a manner that might well contemplate the
application of the confidentiality provisions of section 1202(f) to the entire grouping of
proceedings.
Nor is the Court convinced at this time that the plain language of section 1202(f)
forecloses the Department’s contention that records pertaining to revocation of a visa are covered
by the confidentiality provision. The “revocation” of a visa, for example, might reasonably be
understood to constitute a “refusal”—that is, the United States has decided to refuse the
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noncitizen the further right to enter the Country. Similarly, the “revocation” of a visa might
reasonable be understood to “pertain” to its “issuance”—that is, the Department has decided to
revisit its decision to issue the visa and determined that its decision was either mistaken or
should be reconsidered.
For present purposes, however, the Court concludes that it should take the same approach
the district court initially took in Beltranena v. Clinton, 770 F. Supp. 2d 175, 184 n.5, 185, and
“defer consideration of whether Exemption 3 [and section 1202(f)] appl[y].” Here, deferral is
appropriate because the Department’s Vaughn index requires clarification, and it is uncertain
whether, and in what manner, the revocation issue is actually presented. As explained below,
this uncertainty is highlighted by the Department’s second argument for withholding any records
relating to the revocation of Nathalia Rojas Sierra’s student visa.
That argument posits that the revocation of Nathalia Rojas Sierra’s student visa was
“inextricably intertwined with” the denial of her father’s visa. Dkt. 17 at 11. Under 8 U.S.C. §
1182(a)(2)(C), an alien who is “the spouse, son, or daughter of an alien inadmissible” based on
the government’s belief that he or she is or has been engaged in illicit drug trafficking is also
inadmissible. The Department thus argues that the decision to revoke Nathalia Rojas Sierra’s
visa necessarily followed from the decision to deny Mauricio Rojas Soto’s application and that
“disclosing confidential information related to the revocation of the daughter’s visa would
necessarily disclose confidential information regarding denial of the father’s visa.” Dkt. 17 at
11.
The problem with the Department’s position is that the record is inadequate to support
that defense. The Vaughn index submitted along with the Department’s motion includes no
mention of records relating to the revocation of Nathalia Rojas Sierra’s student visa, but rather
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describes only documents related to her “visa application.” See, e.g., Dkt. 12-2 at ¶ 47. In
contrast, in its briefs, the Department acknowledges that “[a]lthough most of the documents
withheld are related to the refusal of the visa applications of all four plaintiffs, there are . . . some
documents that related to the revocation of Nathalia Rojas Sierra’s . . . student visa,” Dkt. 12 at
14 n.7. Unless and until the Department clarifies what documents relate to the revocation of
Nathalia Rojas Sierra’s student visa and the basis or bases for withholding or redacting those
records, neither the Court nor the Plaintiffs can assess the merits of this argument. Accordingly,
the Department needs to be more specific about what it is withholding and on what basis. Its
supporting declaration and Vaughn index, for example, should distinguish between the different
terms and concepts that form possible bases for withholding. Only after the Department
provides that information can the Court address whether the Department’s refusal of issuance
and revocation decisions were “inextricably intertwined” in this case. The Court will then
determine whether section 1202(f) applies to documents that solely relate to the revocation of a
visa only if it is necessary to resolve that question after the record has been so supplemented.
C. The Department’s Segregability Obligations
Plaintiffs also argue that the Department failed fully to comply with its segregability
obligations under FOIA. Because “the focus of the FOIA is information, not documents, . . . an
agency cannot justify withholding an entire document simply by showing that it contains some
exempt material.” Mead Data Central, Inc. v. U.S. Dept. of the Air Force, 566 F.2d 242, 260
(D.C. Cir. 1977). Thus, unless the non-exempt information is “inextricably intertwined with the
exempt” information, the agency must produce the non-exempt material. Id. As framed in the
statute, “[a]ny reasonably segregable portion of [the] record shall be provided to any person
requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).
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The agency, moreover, bears “the burden of justifying nondisclosure.” Mead Data, 566
F.2d at 260. In doing so, it is not required “to commit significant time and resources to the
separation of disjointed words, phrases, or even sentences which taken separately or together
have minimal or no information content.” Id. at 261 n.55. And it need not “provide such a
detailed justification that [it] would . . . compromise the [confidential] nature of potentially
exempt information.” Id. at 261. But the agency must “show with reasonable specificity why
the documents cannot be further segregated,” Armstrong v. Exec. Office of the President, 97 F.3d
575, 578 (D.C. Cir. 1996), and provide a “‘detailed justification’ for its non-segregability,”
Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting
Mead, 566 F.2d at 261).
In Mead, the Court of Appeals explained that, in addition to providing “its reasons,” an
agency should “describe what proportion of the information in the document is non-exempt and
how that material is dispersed throughout the document.” Mead, 566 F.2d at 261. Absent such a
detailed explanation, and absent in camera review—which is not favored—the Circuit explained
that a district court cannot make “a reasoned judgment as to whether the material is actually
exempt under the FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir.
1979); see also Schoenman v. FBI, 604 F. Supp. 2d 174, 198 (D.D.C. 2009) (finding that the
defendant did not provide sufficient information to meet its segregability obligations because the
Vaughn index failed to include any description of withheld documents).
However, as a recent decision from this district has explained, “the Circuit has more
recently held that ‘[a]gencies are entitled to a presumption that they complied with the obligation
to disclose reasonably segregable material,” and that presumption can be overcome only with
some “quantum of evidence.” Muttitt v. Dep’t of State, 926 F. Supp. 2d 284, 310 (D.D.C. 2013)
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(quoting Sussmann v. U.S. Marshall’s Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007)). Some of
the Court of Appeals’ rulings, moreover, suggest that the Mead standard has been somewhat
“relaxed.” Muttitt, 926 F. Supp. 2d at 310. For instance, in Johnson, the Court of Appeals upheld
the district court’s conclusion that a defendant agency had met its burden on the issue of
segregability by providing a “comprehensive Vaughn index, describing each document withheld,
as well as the exemption under which it was withheld,” along with an affidavit in which an
agency official “explained that she personally conducted a line-by-line review of each document
withheld in full and determined that ‘no documents contained releasable information which
could be reasonably segregated from the nonreleaseable portions.’” 310 F.3d at 776; see also
Loving v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008) (citing Johnson for the proposition
that segregability analysis was adequate where the district court relied on “the description of the
document set forth in the Vaughn index and the agency’s declaration that it released all
segregable materials.”).
Here, Plaintiffs assert that the Department has failed to fulfill its burden because it “has
not provided reasons behind [its] conclusions.” Dkt. 19 at 8. The Department responds by
arguing that the Vaughn index and the rest of the Hackett Declaration “explain that [the
Department] conducted a line-by-line segregability analysis with respect to each responsive
document from all of the record systems it searched.” Dkt. 18 at 9. The Department contends
that the information in each responsive document “pertains exclusively to the issuance or refusal
of a visa to enter the United States and contains no other reasonably segregable, non-exempt
information that can be released.” Dkt. 18 at 9. It also contends that “all non-exempt portions of
the responsive records are inextricably intertwined with Plaintiffs’ request for the basis of the
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Department’s denial of their NIV application,” and that, accordingly, “the Department fully
complied with its segregability obligations in withholding this information.” Dkt. 18 at 9.
Against this backdrop, the Court concludes that the Department has met its burden to
demonstrate that it has produced all reasonably exempt materials, with the possible exception of
any documents (or segregable portions thereof) pertaining to the revocation of Nathalia Sierra’s
student visa. The Vaughn index describes each withheld document and makes clear that each
directly pertains to the Plaintiffs’ visa applications. The withheld documents include, for
instance, three- to six-page printouts of “the results of name checks run through the Consular
Lookout and Support System (CLASS) in the course of processing visa applications” for each
Plaintiff, Dkt. 12-2 ¶ 36; two- to three-page printouts of documents entitled “NIV [nonimmigrant
visa] Applicant Detail” for each plaintiff, id. ¶ 37; printouts entitled “NIV Applicant Case
Lookup Detail” pertaining to each plaintiff, id. ¶ 38; and printouts “tracking changes made to
data fields regarding [Plaintiffs’] visa applications, id. ¶ 44. The Hackett Declaration, moreover,
specifies that most of the documents withheld in full were actually used or created in the course
of processing or adjudicating the Plaintiffs’ visa applications. See, e.g., id. ¶ 36 (describing the
“results of name check run…in the course of processing visa application” for Plaintiffs); ¶ 39
(printouts describing “the details of name check results conducted in the course of processing
[Plaintiffs’] visas”); ¶¶ 40-43 (results of fingerprint checks “conducted in the course of
processing visa applications”); ¶ 45 (records of arrival and departure from the United States
“used in the course of adjudicating” Plaintiffs’ visa applications). This is thus not a case where
the Agency has withheld large reports or documents containing merely passing references to
particular visa applications; rather, Plaintiffs’ visa applications were the primary subject of, or
reason for the existence of, each document withheld. Accordingly, in the circumstances
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presented by this case, the Department’s detailed affidavit describing the documents coupled
with its assertion that a “line-by-line” segregability analysis was conducted for every withheld
document, see, e.g., Dkt. 12-2 ¶ 50, suffice for the Court to conclude that there is no dispute of
material fact as to the Department’s compliance with its segregability obligations, see Loving,
550 F.3d at 41, except potentially for those portions of documents pertaining solely to the
revocation of Nathalia Rojas Sierra’s student visa.
D. Plaintiffs’ Request That The Court Obtain The Withheld Records
Finally, in reply, Plaintiffs cite (at Dkt. 19 at 9) to a Foreign Affairs Manual Provision,
which appears to quote 8 U.S.C. § 1202(f)(1). That provision provides that the Secretary of State
may exercise his or her discretion to make records available to a court when those records are
needed “in the interest of the ends of justice in a case pending before the court.” Dkt. 19 at 9.
Here, the Plaintiffs request that the Court “notify the Secretary of State to provide the withheld
records in the interests of the ends of justice.” Id. The Court declines that request. Plaintiff has
not demonstrated that in camera review of the records is necessary to resolve the pending matter,
and, indeed, has not requested that the Court conduct an in camera review. See Juarez v. Dep’t
of Justice, 518 F.3d 54, 59-60 (D.C. Cir. 2008) (“It is true that FOIA provides district courts the
option to conduct in camera review, but it by no means compels the exercise of that option.”).
And, to the extent Plaintiffs believe that section 1202(f)(1) authorizes a court to request
documents from the Secretary merely for the purpose of turning those documents over to an
unsuccessful FOIA applicant, that is not a reasonable construction of the statute.
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III. CONCLUSION
Accordingly, it is hereby ORDERED that Defendant’s Motion for Summary Judgment,
Dkt. 12, is GRANTED in part and DENIED in part. The motion is GRANTED with respect to
the adequacy of Defendant’s search, the Defendant’s compliance with its segregability
obligations, and the applicability of FOIA exemption 3, except with respect to the question of
whether the Agency properly withheld documents or portions of documents pertaining to the
revocation of Nathalia Rojas Sierra’s visa and providing further detail regarding its decision to
withhold records relating to the revocation of Nathalia Rojas Sierra’s visa. As to that question,
the motion is DENIED. Plaintiff’s Motion for Summary Judgment, Dkt. 15, is DENIED. It is
further ORDERED that on or before August 28, 2015, the Department shall file an additional
affidavit providing further detail as to whether each document pertains to the issuance, denial, or
revocation of a visa. The parties may file renewed motions for summary judgment after
Defendant has had an opportunity to file that additional information.
It is SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 6, 2015
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