Soto v. U.S. Dep't of State, No. 14-00604, 2015 WL 4692415 (D.D.C. Aug. 6, 2015) (Moss, J.)

Soto v. U.S. Dep't of State, No. 14-00604, 2015 WL 4692415 (D.D.C. Aug. 6, 2015) (Moss, J.)

Re: Request for records concerning plaintiffs

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiffs' cross-motion for summary judgment

• Procedural Requirements, Adequacy of Search:  "[T]he Court finds that both the Department's search and its description of the relevant record systems were sufficient."  The court relates that defendant "determined that it was 'reasonably likely' that responsive documents might be found in [three offices]."  Defendant also "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."  The court finds that "[p]laintiffs 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."  "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."
   
• Exemption 3 & Litigation Considerations, Vaughn Index/Declaration:  The court holds that "the Department needs to be more specific about what it is withholding and on what basis."  The court relates that defendant relies on "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.'"  The court relates that "[t]he 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."  The court rejects plaintiffs' first argument and finds that "[t]he 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)."  The court then turns to the question of whether "section 1202(f) protects only records 'pertaining to the issuance or refusal of visas or permits to enter the United States'" or also "applies to revocation proceedings."  The court finds that "[it] is not yet convinced that visa revocations fall beyond the reach of section 1202(f)."  "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" of that section.  However, the court "'defer[s] consideration of whether Exemption 3 [and section 1202(f)] appl[y]' . . .  because the Department's Vaughn index requires clarification."
   
• Waiver:  The court holds that "[t]o 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."  However, the court finds that plaintiffs "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."
   
• Litigation Considerations, Vaughn Index/Declaration & Reasonably Segregable Requirements:  "[T]he 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 [one plaintiff's] student visa."  "The Vaughn index describes each withheld document and makes clear that each directly pertains to the 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 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, . . . suffice for the Court to conclude that there is no dispute of material fact as to the Department's compliance with its segregability obligations, . . . except potentially for those portions of documents pertaining solely to the revocation of [one plaintiff's] student visa."
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[p]laintiff 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."