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Zynovieva v. U.S. Dep't of State, No. 19-3445, 2021 WL 3472628 (D.D.C. Aug. 5, 2021) (Moss, J.)

Date

Zynovieva v. U.S. Dep't of State, No. 19-3445, 2021 WL 3472628 (D.D.C. Aug. 5, 2021) (Moss, J.)

Re:  Request for records concerning plaintiff's prior visa applications

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemption 3 * Litigation Considerations, Vaughn Index/Declaration:  "Because the Department has not justified its withholdings, the Court will deny the Department's motion for summary judgment."  "Plaintiff does not dispute – and D.C. Circuit precedent makes clear – that 8 U.S.C. § 1202(f), which protects the confidentiality of records related to visa processing, qualifies as a withholding statute under Exemption 3."  "Plaintiff contends, however, that the Department has not carried its burden of demonstrating that the records withheld in this case fall within the scope of 8 U.S.C. § 1202(f)."  "The question here is whether the Department's 'no number, no list' response, by identifying the categories of records that the Department generally maintains and averring that the withheld records fall within some or all of those categories, has 'give[n] the [Court] a reasonable basis to evaluate the claim of privilege.'"  "Contrary to Plaintiff's suggestions, the Court concludes that the Department is not necessarily required to produce a Vaughn index in this case."  "Nor is the agency necessarily required to justify its Exemption 3 withholdings on a document-by-document basis, given that 'the sole issue for decision [under Exemption 3] is the existence of a relevant statute and the inclusion of withheld material within that statute’s coverage.'"  "Here, the records withheld under § 1202(f) are amenable to categorical treatment."  "The statute shields from disclosure all records 'pertaining to the issuance or refusal of visas,' and thus any classes of records that by their nature always relate to visa processing are categorically exempt from disclosure."  However, "[t]he Court concludes that the Department has not yet done enough to justify its withholdings."  "[T]he Court is still unpersuaded that the Department has 'giv[en] the requester as much information as possible, on the basis of which [she] can present [her] case to the . . . [C]ourt.'"  "[Defendant] simply states in conclusory fashion that '[t]he record(s) being withheld in this case each correspond to one of the document types' described as relating to visas."  "[Defendant] does not say, however, who reviewed the records to make that determination or what knowledge or experience that person brought to the task."  "[Defendant] does not say whether that person reviewed the responsive records one by one to ensure that each record fell into one of the thirteen categories [of documents at issue] or whether, instead, the person simply assumed that the records must fall into those thirteen categories, given that those are the 'types of visa records that are generally kept,' . . . ."  "Even if the Department cannot identify the number of records at issue, it can surely describe the nature of its processing of the records in greater detail."  "Such an explanation would give the Court greater confidence that the records Plaintiff seeks do, in fact, all relate to visas."  "Next, the Court turns to whether the 'no number, no list' response was necessary to protect important government interests in the present circumstances."  "Here again, the Court concludes that the Department has not done quite enough to justify its approach."  "The Department asserts that it cannot reveal the number or specific nature of the withheld records without disclosing information that § 1202 is meant to protect."  "The problem is that the Department has not adequately substantiated this concern, particularly in light of the novelty of the approach the Department urges the Court to endorse and the D.C. Circuit's observation that a 'no number, no list' response is unlikely to pass muster unless supported by 'a particularly persuasive affidavit.'"  "Plaintiffs point out, the Department has revealed the number and nature of visa records in past cases."  "And the Department acknowledges that it 'has provided document-by-document Vaughn indexes in other cases dealing with records withheld under § 1202(f).'"  "The Department explains, however, that 'experience has shown that its prior practice caused the disclosure of confidential aspects of the visa adjudication process,' and, '[a]s a result, it has prudently modified its practice to ensure the statutorily mandated confidentiality.'"  "The Department does not say, however, how frequently such issues arose, or under what circumstances (or even types of circumstances)."  "Nor does the Department explain whether such concerns would be present in every case or only in some subset of cases, such that the Department could still provide a Vaughn index in certain types of visa cases."  "The Department also fails to explain why it must take the 'no number, no list' approach to all thirteen categories of visa records."
     
  • Litigation Considerations, Adequacy of Search:  "[A]lthough the parties focus their attention on the propriety of the Department's withholdings, the Court in reviewing the record encountered one point of confusion about the adequacy of the Department's search."  "In renewing its motion for summary judgment, the Department should clarify [its] point [concerning whether the database that plaintiff requested be searched was included in defendant's search of a different database and, if not, why not]."
     
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "[B]ecause the Department must do more to support its 'no number, no list' response and to support the adequacy of its search, the Court will defer making a final decision with respect to segregability until the record is complete and the universe of potentially responsive records is settled."
Court Decision Topic(s)
District Court opinions
Exemption 3
Litigation Considerations, Adequacy of Search
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated August 31, 2021