Assadi v. U.S. Citizenship & Immigration Servs.
| Decision Date | 30 March 2015 |
| Docket Number | 12-CV-1374 (RLE) |
| Parties | JOHN ASSADI, ESQ., Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant. |
| Court | U.S. District Court — Southern District of New York |
I. INTRODUCTION
On February 23, 2012, Plaintiff John Assadi, Esq. ("Assadi") filed the Complaint in this action against Defendant United States Citizenship and Immigration Services ("CIS"), alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and seeking declaratory and injunctive relief. On May 30, 2012, the Parties consented to the jurisdiction of the undersigned. Before the Court is CIS's Motion for Summary Judgment. For the following reasons, CIS's motion is GRANTED.
II. BACKGROUND
On October 11, 2011, Assadi submitted a request for documents under FOIA to the CIS National Records Center. Assadi sought production of documents relating to communications "from and between 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, relating to John Assadi, John J. Assadi, or Assadi & Milstein, LLP, but excluding any documents or supporting documents filed or submitted by John Assadi." (Doc. No. 1 at 2.) Assadi temporally limited hisrequest to January 1, 2009, through October 11, 2011. (Id. at 7.) On November 21, 2011, CIS notified Assadi that it was withholding documents pursuant to 5 U.S.C. §§ 552(b)(5), (b)(6), and (b)(7)(C). (Id. at 13.) Assadi appealed the same day and CIS affirmed its decision on January 12, 2012. (Id. at 19.)
On February 23, 2012, Assadi filed the present Complaint alleging that CIS failed to provide responsive records under FOIA, improperly relied on FOIA exemptions, and failed to provide a Vaughn index. (Doc. No. 1) On April 2, 2012, CIS filed its Answer. (Doc. No. 5) CIS provided a Vaughn index to Assadi on June 8, 2012, and filed it first Motion for Partial Summary Judgment on August 3, 2012. (Doc. No. 10) In the motion, CIS stated that it had decided on July 23, 2012, to undertake an additional search for responsive documents, and that the search would be completed by August 24, 2012. (Id.) On August 15, 2012, Assadi filed its response to CIS's motion, (Doc. No. 13) and on August 20, 2012, CIS filed its reply. (Doc. No. 17) The Court granted CIS's Motion for Partial Summary Judgment on January 22, 2013. (Doc. No. 18)
On July 11, 2013, the Parties appeared before the Court for a status conference to address CIS's failure to produce the remaining responsive documents to Assadi. At the conference, the Court orally ordered CIS to produce all remaining documents to Assadi by August 23, 2013, and ordered Assadi to file any objections to the production by August 30, 2013. On July 12, 2013, the Court issued a written order embodying its oral order, and further ordered CIS to submit an affidavit by July 26, 2013, detailing the efforts it had made to fulfill its statutory duty to produce responsive documents to Assadi, including an explanation for the delayed production. (Doc. No. 19) CIS timely submitted the affidavit. (Doc. No. 22) On August 21, 2013, CIS produced additional documents to Assadi, along with a preliminary Vaughn index. (Doc. No. 35 at ¶ 4, Ex. 1.)
On September 23, 2013, Assadi filed a Motion for In Camera Review concerning pages withheld from the August supplemental production. (Doc. No. 28.) Before filing a response, CIS produced additional documents. (Doc. No. 35 at ¶ 6.) On October 8, 2013, CIS produced a "Fraud Referral Sheet" with a two-page attachment. (Id.) CIS asserted that this document was mistakenly omitted from the August 21 production and that responsible CIS officials had believed that the sheet had been included in the August 21 production until a page-by-page review conducted in late September. (Doc. No. 41 at ¶ 8.)
On October 24, 2013, CIS produced an additional 415 pages of responsive records with a Vaughn index addressing the withholdings. (Doc. No. 35 at ¶ 6.) This production consisted of emails and documents from a CIS attorney, Patsy Yung Micale. (Id.) CIS asserted that it discovered these documents after conducting searches at the advice of attorneys who had previously worked on matters involving Assadi at the U.S. Attorney's Office. (Id.) On January 8, 2015, CIS informed the Court that it believed its production was complete. (Doc. No. 41)
On November 7, 2013, CIS filed its response to Assadi's Motion for In Camera Review, and filed a Cross-Motion for Partial Summary Judgment. (Doc. No. 33) On September 26, 2015, the Court denied Assadi's Motion for In Camera Review and granted CIS's Motion for Partial Summary Judgment. (Doc. No. 59)
On January 31, 2014, CIS informed the Court that it "unexpectedly identified and located an additional group of responsive documents" and expected to begin rolling productions no later than February 3, 2014. (Doc. No. 42) CIS asserted that on January 16, 2014, while reviewing the prior 415-page production, counsel for CIS "noticed that CIS attorneys Evan Franke and James Martin appeared in the 'CC' line of certain emails in the 415-page production, and in the 'CC' line of Ms. Micale's litigation hold memorandum dated March 9, 2011." (Id.) Upon inquiry, CISlearned that Franke and Martin had not been tasked with searching for responsive records. (Id.) Three rolling productions were made on February 4, 11, and 12, 2014, resulting in a total supplemental production of 429 pages. (Doc. No. 49) CIS sent Assadi a Vaughn index for the February productions on February 24, 2014. (Doc. No. 53 at ¶ 13.)
On April 23, 2014, CIS filed a Motion for Summary Judgment. (Doc. No. 48) Assadi filed a Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment on May 23, 2014. (Doc. No. 54) This motion included a request for in camera review. (Id. at 4) CIS filed its reply on June 5, 2014. (Doc. No. 55)
III. DISCUSSION
In camera review in FOIA cases is at the discretion of the trial court. 5 U.S.C. § 552(a)(4)(B). The court should consider conducting in camera review "where the government seeks to exempt entire documents but provides only vague or sweeping claims as to why those documents should be withheld." Associated Press v. U.S. Dep't of Justice, 549 F.3d 62, 67 (2d Cir. 2008). In camera review is only necessary where "the government's affidavits make it effectively impossible for the court to conduct de novo review of the applicability of FOIA exemptions." Id. See Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 75-76 (2d Cir. 2009) (). Before ordering in camera review, the district court may, at its discretion, consider alternative options for eliciting additional detail from the government, including requiring supplemental Vaughn affidavits, permitting further discovery, or offering the government the option of submitting additional Vaughn affidavits for in camerareview. Halpern v. F.B.I., 181 F.3d 279, 295 (2d Cir. 1999). In camera review is thus the exception, not the rule. Local 3, Int'l Bhd. Of Elec. Workers, AFL-CIO v. N.L.R.B., 845 F.2d 1177, 1180 (2d Cir. 1988).
CIS provided Assadi with Vaughn indexes for its two supplemental productions on October 24, 2013, and February 24, 2014. (Doc. No. 35 at ¶ 6.; Doc. No. 53 at ¶ 11) Having reviewed both indexes, the Court finds that CIS has provided sufficient detail to support its claims that the exemptions apply. See Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 75 (2d Cir. 2009) (quoting Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009)) ( that if an agency's statements "'contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise . . . the court should not conduct a more detailed inquiry . . . .'").
Assadi argues that the Court should follow the framework set out by the D.C. Circuit in Allen v. CIA, (Doc. No. 54 at 4.), and consider the following factors in determining whether to conduct in camera review: 1) judicial economy; 2) the conclusory nature of agency affidavits; and 3) bad faith on the part of the agency. 636 F.2d 1287, 1298 (D.C. Cir. 1980), disavowed on other grounds, Founding Church of Scientology of Washington, D.C, Inc. v. Smith, 721 F.2d 828 (D.C. Cir. 1983)1 Assadi does not cite any Second Circuit precedent to support his claim. However, even under the Allen v. CIA framework, in camera review is not required.
Although Assadi is correct that in camera review is more likely appropriate in cases where the number of documents at issue is small, id. at 1291, this is not the only factor a court should consider. Moreover, this factor alone is not an affirmative basis for conducting a review;it merely suggests that review may be less burdensome than in other circumstances. As CIS argues, "in camera review does not serve judicial economy when the Government's declarations are perfectly adequate in their own right." (Doc. No. 55 at 9.) Assadi provides no affirmative basis for the court to review pages withheld on the basis of attorney-client privilege or attorney work product. (Doc. No. 54 at 5-6) The Court finds that CIS's Vaughn indexes are adequately detailed and, thus, in camera review for documents withheld on these bases is not warranted.
As to the documents withheld on the basis of the deliberative process privilege, Assadi argues that CIS's affidavits are conclusory because its segregability analysis is insufficient. FOIA provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such...
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