Jimenez v. DHS, No. 23-10073, 2024 WL 4487974 (11th Cir. Oct. 15, 2024) (Hull, J.)

Jimenez v. DHS, No. 23-10073, 2024 WL 4487974 (11th Cir. Oct. 15, 2024) (Hull, J.)

Re:  Request for records concerning revocation of requesters’ United States visas

Disposition:  Affirming district court’s adoption of magistrate judge’s report and recommendation, denial of requester’s motion for summary judgment, and grant of government’s motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the Eleventh Circuit relates that “[the requesters] argue that the declarations from [the Office of Biometric Identity Management (“OBIM”)] and [USCIS] violated the best evidence rule in Federal Rule of Evidence 1002 and are thus inadmissible.”  “[The requesters] contend the agencies must attach to the declarations all original FOIA correspondence between the agency and the requesters (or at least file it on the record), and the agencies violated Rule 1002 by failing to do so.”  “Under Rule 1002, ‘[a]n original writing . . . is required in order to prove its content unless these rules or a federal statute provides otherwise.’”  The court finds that “[c]ontrary to the plaintiffs’ contention, Rule 1002 does not require an agency in FOIA litigation to provide the district court with all subsequent correspondence related to the FOIA request as a matter of course.”  “The declarations were not offered to prove the contents of subsequent correspondence between the agencies and the plaintiffs.”  “Rather, the declarations were submitted to show that the agencies conducted adequate searches and that certain exemptions applied to withheld records or to redactions in produced records.”  “The subsequent correspondence was not needed, much less required, for the government to do that and carry its burden to show adequate searches and properly invoked exemptions.”
  
  “[P]laintiffs next contend they rebutted the presumption of good faith as to the declarations of [the government] by presenting evidence that their agencies sometimes withheld information they previously had released.” “After careful review of the documents, [the court] conclude[s] the plaintiffs failed to overcome the good faith presumption for the . . . declarations.”  “At the outset, we agree with the district court that evidence an agency inconsistently redacted the same document, by itself, does not show bad faith.”  “This is especially true when the redactions were made years apart or by different FOIA officials or where the agency explains the inconsistency and subsequently corrects any errors.”  “Similarly, the presumption of good faith is not rebutted by the existence of earlier contradictory classifications of withheld documents.”  “As the record here demonstrates, agencies often have multiple FOIA analysts processing FOIA requests.”  “While efforts are made to train and supervise to ensure consistencies in processing FOIA requests, those analysts will not always agree on whether requested information falls within a FOIA exemption.”
   
• Litigation Considerations, Evidentiary Showing, Adequacy of Search & Procedural Requirements, Searching for Responsive Records: The Court of Appeals for the Eleventh Circuit holds that “plaintiffs failed to show OBIM’s searches were not reasonable.”
  
  First, the court finds that “[OBIM’s] declaration carries the government’s burden to show that OBIM’s fingerprint search was ‘reasonably calculated to uncover all relevant documents’ in [Automated Biometric Identification System (“IDENT”)] about [one requester].”  “[OBIM’s] declaration explained that ‘the practice of OBIM [is] to search for records in IDENT using fingerprint cards where available,’ and that such a search ‘will result in the location of any records relating to a subject in IDENT.’”  “[OBIM] acknowledged that OBIM also is able to use an alien identification number to locate records in IDENT but stated that such a search ‘would locate the same records’ as a fingerprint search.”  “The [requesters] contend, without citing any evidence, that not ‘every single database entry’ will contain ‘both a valid, searchable fingerprint and an alien number.’”  “OBIM, however, is not required to perform an exhaustive search, only a reasonable one, and [OBIM’s] declaration establishes that it did so.”|
  
  Second, the court relates that “[t]he [requesters] maintain that OBIM’s searches were inadequate because OBIM, a DHS component, failed to comply with 6 C.F.R. § 5.4(c) and route their requests for information about [two requesters] to CBP, another DHS component, to search [the Arrival and Departure Information System (“ADIS”)].”  “At the time of the plaintiffs’ requests, § 5.4(c) provided that a DHS component’s FOIA office shall route requests that it determines were ‘misdirected’ to ‘the FOIA office of the proper component(s),’ as follows: ‘(c) Re-routing of misdirected requests.’  ‘Where a component’s FOIA office determines that a request was misdirected within DHS, the receiving component’s FOIA office shall route the request to the FOIA office of the proper component(s).’”  “It is undisputed that the record requests at issue in Counts 1 and 2 were directed only to OBIM and sought ‘all information located in’ the IDENT, ADIS, ‘and other OBIM systems about’ [two of the requesters].”  “According to [OBIM’s] declaration, ADIS is not an OBIM system but is owned and maintained by CBP.”  “OBIM thus could not conduct a search of ADIS for responsive records.”  “OBIM notified the plaintiff requesters of this fact and that ‘any requests for ADIS records needed to be sent to CBP.’”  “The question here is whether OBIM was also required to route the plaintiffs’ request to CBP.” “This calls for [the court] to interpret the meaning of ‘misdirected’ requests in § 5.4(c).”  “At the time of the requests, § 5.4(c) did not define ‘misdirected.’”  “Ordinarily something is ‘misdirected’ if it is sent to the wrong address or destination.” “In other words, a ‘request’ is ‘misdirected’ if it is sent to the wrong DHS component, that is, a DHS component that does not have, or cannot search for, the requested records.”  “Here, though, OBIM had the IDENT system, maintained records responsive to the plaintiffs’ requests, and searched that IDENT system.”  “The plaintiffs’ requests were not misdirected to OBIM.”  “This understanding – that a request is ‘misdirected’ only if the receiving DHS component maintains none of the records sought – is supported by context from neighboring provisions.”  “Section 5.4(c)’s requirement to ‘route’ a ‘misdirected’ request to another DHS component is an exception to the general duty in § 5.4(a) to respond to requests.”  “Under that provision, a DHS component is ‘responsible for responding’ to a request for records that it ‘maintains,’ ‘[e]xcept in the instances described in paragraphs (c) and (d).’”  “In turn, § 5.4(c) requires the component to ‘route’ a request it determines is ‘misdirected’ to the ‘proper’ component.”  “Together, these two provisions establish a binary – the DHS component either has the responsibility to respond to a request under the general rule or it must route the request to the proper component.”  “Section 5.4(d) also suggests a DHS component has the responsibility to route only entire requests, not parts, under § 5.4(c).”  “Section 5.4(d)’s express recognition of partial referrals to other DHS components contrasts with § 5.4(c)’s silence about the need to partially route a misdirected request to another DHS component.”  “[The court] presume[s] a different meaning when one provision addresses an issue on which another provision is silent.”  “If § 5.4(c) required the receiving DHS component to route only part of a misdirected request to another DHS component, it would have addressed this possibility explicitly, as was done in § 5.4(d).” “That § 5.4(c) does not do so suggests that a ‘misdirected’ request is not a request that requires only partial routing to another DHS component.”  “[The court is] not persuaded by the plaintiffs’ argument that § 5.4(c) covers partially misdirected requests because it permits DHS components to route a misdirected request to multiple ‘component(s).’”  “To be sure, under § 5.4(c) the receiving DHS component can route a misdirected request to more than one other DHS component.”  “That a request might be correctly addressed to multiple DHS components sheds no light on whether it was ‘misdirected’ in the first place.”  “For example, a request sent to Component A that is misdirected because it seeks information maintained only by Components B and C would require Component A to route the misdirected request to both Component B and Component C.”  “So, § 5.4(c)’s use of ‘component(s)’ does not undermine the plain language and regulatory context that indicates that only requests to a DHS component that maintains none of the records sought are misdirected.”  “Finally, we note that a recent clarifying amendment to § 5.4(c) also supports our interpretation of that provision.”  “In February 2024, DHS amended § 5.4(c) to, inter alia, specifically provide that a request is not ‘misdirected’ if the receiving DHS component ‘may maintain’ responsive records and the receiving DHS component is not obligated to forward such a request to other DHS components.”  “The requests were not ‘misdirected’ within the meaning of § 5.4(c) because the plaintiffs’ requests for information about [the requesters] in the IDENT and ADIS systems were directed to OBIM and OBIM was able to search the IDENT system for responsive records.”  “OBIM had a duty under § 5.4(a) to search IDENT for responsive records, which it did.” “OBIM was not required by § 5.4(c) to also route the request to CBP.”  “And OBIM did not violate § 5.4(c) by instead notifying the requesters that they needed to submit a separate request directly to CBP to obtain information about [the requesters] in the ADIS system.”
   
• Exemption 3:  The Court of Appeals for the Eleventh Circuit holds that “[the requesters] argue the government improperly invoked Exemption 3 to withhold and redact documents pertaining to visa revocations.”  “The withholding statute the agencies invoked is INA § 222(f), 8 U.S.C. § 1202(f).”  “That statutory provision makes ‘confidential’ records ‘pertaining to the issuance or refusal of visas,’ as follows:  ‘The 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 and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States . . . .’”  “[The court] readily conclude[s] that INA § 222(f) is a withholding statute under Exemption 3.”  “Having determined that § 222(f) is a withholding statute, the next question is whether visa revocation records fall within the scope of § 222(f).” “Section 222(f) covers records ‘pertaining to the issuance or refusal of visas.’”  “As with regulations, [the court] start[s] with a statute’s plain text to determine its meaning.”  “Generally, ‘pertain’ is defined as related to or connected to.”  “The phrase ‘pertaining to,’ like the phrase ‘relating to,’ is deliberately expansive and gives a statute a broad sweep.”  “While § 222(f) explicitly refers to the ‘issuance’ and the ‘refusal’ of a visa, the presence of the phrase ‘pertaining to’ indicates the statute is not limited only to records issuing and refusing a visa.” “If a record relates to the issuance or refusal of a visa, even if it is not itself a record of an issuance or refusal, § 222(f) makes that record confidential.”  “The only circuit to have addressed whether § 222(f)’s scope is broad enough to encompass visa revocation records has concluded that it is.” “[T]he Second Circuit held that documents that ‘relate solely to the revocation of a visa “pertain[ ] to the issuance or refusal of visas or permits to enter the United States” and thus fall within the ambit of INA § 222(f).’”  “The Second Circuit’s . . . reasoning is persuasive.”  “[The court] agree[s] that records about a visa’s revocation ‘pertain[ ] to’ both the visa’s issuance and its ultimate refusal.”  “A visa’s issuance and revocation are closely related because the revocation follows from the Secretary’s decision to reconsider the visa’s issuance, often because new information or changed circumstances may have rendered the initial justification for issuing the visa unsound.” “The revocation constitutes a nullification of the ‘issuance.’”  “The visa’s revocation also constitutes a form of ‘refusal’ upon that reconsideration.” “Accordingly, visa revocation records unambiguously fall within the ‘pertaining to’ scope of § 222(f) and must be kept confidential.”  “Because § 222(f) is a withholding statute under Exemption 3 that makes visa revocation records confidential, [the court] agree[s] with the district court that the government properly withheld information about the revocation of [the requesters’] visas in response to the [requesters’] record requests.”