Assadi v. U.S. Dep't of State

• Decision Date: 19 September 2014
• Docket Number: 12 Civ. 1111 (LLS)
• Parties: JOHN ASSADI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — Southern District of New York

JOHN ASSADI, Plaintiff, v. UNITED STATES DEPARTMENT OF

STATE, Defendant.

12 Civ. 1111 (LLS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 22, 2014

September 19, 2014

OPINION & ORDER

Plaintiff John Assadi brings this Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, suit to obtain records from Defendant the United States Department of State ("DOS").

DOS moves for partial summary judgment, arguing that it has satisfied its obligations under FOIA because its search through February 2014 was adequate and any withheld documents fall within FOIA exemptions. Assadi contends that DOS's search was inadequate, DOS erroneously withheld documents under FOIA Exemptions 3 and 5, and DOS did not reasonably segregate the the non-exempt portions. He also requests in camera review of all disputed documents.

The motion for partial summary judgment is granted because DOS conducted an adequate search, provided sufficiently detailed affidavits and Vaughn indices¹ that show it properly invokedapplicable FOIA exemptions, and released all reasonably segregable non-exempt portions of the documents.

BACKGROUND

On November 29, 2011, Assadi, a partner in the law firm of Assadi & Milstein LLP, Compl. ¶ 4, submitted a FOIA request to DOS's Office of Information Programs and Services ("IPS").² Id. Ex. C at 1.

Assadi requested that IPS

search the records of the U.S. Department of State, including the National Visa Center, Fraud Prevention Unit, the American Embassies/Consulates in Ankara, Istanbul and Adana, Turkey, the American Embassy in Paris, France and the American Embassy in Abu Dhabi, United Arab Emirates, and provide any and all documents, including operational and administrative policies, intra-agency and inter-agency memoranda, letters, cables, emails, personal correspondence or other communications relating to John Assadi, John J. Assadi or Assadi & Milstein LLP.

Id.

Assadi explained:

The circumstance that led to the creation of such records and the basis for my belief that such records exist within the Department of State and its offices relate to an unclassified memorandum issued by the State Department NVC Fraud Prevention Unit on February 19, 2010 to the American Embassy/Consulate, in Ankara, Turkey, among others, and subsequent anomalous treatment by State Department entitiesof visa applications for applicants represented by John Assadi or Assadi & Milstein LLP.

Id.

Assadi filed the Complaint on February 14, 2012, alleging that DOS "failed to produce any records responsive to Plaintiff's November 29, 2011 FOIA request or demonstrate that responsive records are exempt from production, nor has Defendant indicated when or whether any responsive records will be produced." Id. ¶ 10. He asked that the Court "Order Defendant to produce, by a date certain, any and all non-exempt records responsive to Plaintiff's November 29, 2011 FOIA request and a Vaughn index of any responsive records withheld under claim of exemption." Id. at 4.

Pursuant to consultations between the parties and conferences held by the Court on May 11, 2012, August 17, 2012, September 14, 2012, and November 15, 2013, see Dkt., the parties agreed to a two-phase search and rolling productions of responsive records.

The first search phase produced records from the Central Foreign Policy Records, the Bureau of Consular Affairs, the U.S. Embassies in Ankara, Turkey, Paris, France, and Abu Dhabi, United Arab Emirates, see Walter Decl. ¶¶ 9-14, and the second search phase produced records from the National Visa Center. See id. ¶¶ 15-19. DOS produced a Vaughn index to Assadi for thefirst phase in September 2012 and for the second phase in March 2014 with this motion.

DOS has since undertaken a third search phase of the Office of the Legal Adviser and the Office of Legal Affairs in the Office of Visa Services within the Bureau of Consular Affairs, which is not at issue on this motion. Id. ¶ 23.

DISCUSSION

DOS moves for partial summary judgment, arguing that it has met its FOIA obligations for the first two search phases.

Assadi argues that DOS failed to conduct an adequate search, improperly withheld documents under FOIA Exemptions 3 and 5 and did not release all reasonably segregable factual material. Assadi also requests that the Court conduct an in camera review of all disputed documents.

A. FOIA Summary Judgment Standards

FOIA requests are generally resolved on summary judgment:

In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA. See 5 U.S.C. § 552(a)(4)(B); EPA v. Mink, 410 U.S. 73, 797 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden. SeeMaynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993); Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) (per curiam); Malizia v. United States Dep't of Justice, 519 F. Supp. 338, 342 (S.D.N.Y. 1981). Affidavits submitted by an agency are "accorded a presumption of good faith," SafecardServs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991); accordingly, discovery relating to the agency's search and the exemptions it claims for withholding records generally is unnecessary if the agency's submissions are adequate on their face. When this is the case, the district court may "forgo discovery and award summary judgment on the basis of affidavits." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); accord Maynard, 986 F.2d at 556 n. 8; Simmons v. United States Dep't of Justice, 796 F.2d 709, 711-12 (4th Cir. 1986).

In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations, Goland, 607 F.2d at 355, or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate, see, e.g., Washington Post Co. v. United States Dep't of State, 840 F.2d 26, 28 (P.C. Cir. 1988) (non-moving party produced hard evidence in the form of books and press accounts suggesting privacy exemption did not apply, vacated on other grounds, 898 F.2d 793 (1990); Porter v. United States Dep't of Justice, 717 F.2d 787, 791-93 (3d Cir. 1983) (agency's affidavits included conflicting information); Schaffer v. Kissinger, 505 F.2d 389, 390-91 (P.C. Cir. 1974) (per curiam) (inadequate reasons stated for application of national security exemption).

Carney v. U.S. Dep'tof Justice, 19 F.3d 807, 812-13 (2d Cir. 1994) (footnote omitted).

In addition to affidavits or declarations, agencies often submit Vaughn indices to meet their burden. Nat'l Pay Laborer Org. Network, 811 F. Supp. 2d at 733. "The Vaughn index must adequately describe each withheld document or portion of a document and must state the claimed exemption with sufficient specificity to permit a reasoned judgment as to whether the material is actually exempt under FOIA." NAACP Legal Def. &Educ. Fund, Inc. v. U.S. Dep't of Hous. & Urban Dev., No. 07 Civ. 3378, 2007 WL 4233008, at *9 (S.D.N.Y. Nov. 30, 2007) (internal quotation marks and citation omitted).

B. Adequacy of the Search

"A search will be considered adequate if it was reasonably calculated to uncover all relevant documents. Reasonableness does not demand perfection, and a reasonable search need not uncover every document extant." Bloomberg L.P. v. Bd. of Governors of Fed. Reserve Sys., 649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009), aff'd, 601 F.3d 143 (2d Cir. 2010).

DOS relies on the declaration of Sheryl L. Walter, Director of IPS, to show that its search was adequate. DOS summarizes the search as follows:

First, the Department initiated searches of all Department components specifically requested by the Plaintiff, including several embassies and consulates. See Walter Decl. ¶¶ 22, 27-34. The Department located responsive records as a result of these searches, the details of which are described in the Walter Declaration. See Walter Decl. ¶¶ 8-14, 27-34; Exh. 5-11. Additionally, the Department searched its Central Foreign Policy Records collection (the "Central File"), which contains over 30 million records of a substantive nature. See Walter Decl. ¶¶ 8, 24-26; Exh. 5. A search of the Central File was conducted through a full-text search using the terms "John Assadi," "John J. Assadi," "Assadi, John," "Assadi Milstein" and "Assadi and Milstein." Two responsive records were found. See Walter Decl. ¶¶ 14, 35-38; Exh. 11. Given the nature of the requested records, a Consular Affairs Analyst determined that the only locations reasonably likely to contain responsive records in the Bureau of Consular Affairs were two databases, the Consular Lookout and Support System and the Petition Information Management Services; both of these databases were searched using the term "John Assadi."

Walter Decl. ¶¶ 35-38. Some responsive records were located. Walter Decl. ¶¶ 14, 38; Exh. 11. Finally, the Fraud Prevention Unit of the National Visa Center conducted a search of its paper and electronic records systems using the terms "Assadi," "John Assadi," "John J. Assadi," "Assadi and Milstein," and "Assadi or Milstein." Responsive records were also found through this search. See Walter Decl. ¶¶ 15-19, 39-41; Exh. 12-16.

Defendant's Memorandum of Law in Support of the Motion for Partial Summary Judgment dated March 6, 2014 ("D. Mem.") 7-8.

The Walter Declaration is sufficiently detailed and shows that DOS searched all sources specified in Assadi's request as well as other DOS records systems likely to contain relevant documents, and that its search methods were reasonably calculated to uncover all...