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

• Decision Date: 10 June 2022
• Docket Number: Civil Action 17-2685 (RC)
• Parties: VICTOR AVILA, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

VICTOR AVILA, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, Defendant.

Civil Action No. 17-2685 (RC)

United States District Court, District of Columbia

June 10, 2022

Re Document Nos.: 41, 45

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS United States District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Victor Avila, Jr. is a United States citizen and a retired Special Agent for U.S. Immigration and Customs Enforcement (“ICE”), a federal law enforcement agency under the Department of Homeland Security (“DHS”). Avila Decl. ¶ 2, Ex. 1 to Pls.' Cross Mot. Summ. J (“Pls. MSJ”), ECF No. 45; Def.'s Mot. Summ. J. (“Def. MSJ”) at 2 & n.2, ECF No. 41.^[1] Agent Avila was assigned to the ICE Attache office at the U.S. Embassy in Mexico City, Mexico. Avila Decl. ¶ 4. In February 2011, Agent Avila and ICE Special Agent Jaime Zapata were on duty transporting equipment to Mexico City when they were ambushed by members of a Mexican cartel. Id. ¶¶ 12-19. The cartel members chased the agents by car, forced them off the highway, and fired nearly 100 bullets at their vehicle, killing Agent Zapata and seriously wounding Agent Avila. Id.

In the aftermath of the ambush, Agent Avila requested various FOIA documents from ICE and DHS, to little success. Id. ¶ 22. In October 2017, Agent Avila turned to the State Department for answers. He, along with co-plaintiff Judicial Watch, Inc., a non-profit organization (collectively, “Plaintiffs”), jointly submitted a FOIA/Privacy Act request to the State Department seeking “records concerning Victor Avila, Jr.” Pls. MSJ, Ex. 1 to Burke Decl. (“Request Letter”) at 1; see 5 U.S.C. §§ 552, 552a. The letter states that Plaintiffs “are particularly interested in communications among State Department personnel that refer to or relate to Mr. Avila and communications between the State Department and ICE and/or DHS personnel that refer to or relate to Mr. Avila.” Id. The time frame of this request was from January 1, 2011 to the present. Id.

The State Department processed Plaintiffs' request through State's Office of Information Programs and Services (“IPS”). Stein Decl. ¶ 1, page 57 of Def. MSJ. After acknowledging that it had received the request, the State Department did not communicate further with Plaintiffs. Compl. ¶¶ 7-8. Plaintiffs brought suit on December 15, 2017. Id. By April 2018, the State Department began making rolling productions to Plaintiffs. Def.'s Statement of Undisputed Facts (“Def. St. Facts”) ¶¶ 5-28, ECF No. 41. On June 27, 2018, the State Department reached out to Plaintiffs to see if they would be willing to narrow the search:

• Extradition-related documents. Our search has identified a substantial volume of documents concerning extradition of individuals to the United States in connection with the attack. Would plaintiff be willing to exclude extradition related documents from the scope of the request?

• Custodians. Would plaintiff be willing to exclude records from any of the following custodians from the scope of the request? Bureau of Diplomatic Security (DS); Embassy Mexico City; Bureau of Consular Affairs (CA); Office of the Legal Adviser (L).

• Time Frame. The request's time frame is January 1, 2011 to the present. Would plaintiff be willing to narrow the timeframe?

Email from Melanie Hendry to Lauren Burke (June 27, 2018), Ex. 2 to Burke Decl. Plaintiffs agreed to exclude extradition related documents from the request but did not agree to narrow custodians or timeframe. See Email from Lauren Burke to Melanie Hendry (July 2, 2018), Ex. 3 to Burke Decl.

On August 2, 2018, the parties appeared before the Court for a status conference. See August 2, 2018 Hearing Transcript, ECF No. 28. The Court encouraged the parties to talk to each other and attempt to resolve disputes without the Court's intervention. Plaintiffs agreed that all news clips and statements made by Agent Avila could be excluded from the search. Id. at 4:1-4.

The State Department completed its search in April 2021. Def. St. Facts ¶¶ 5-28. All told, the State Department located 138 responsive documents. Stein Decl. ¶ 30. It released to Plaintiffs 22 documents in full and 85 documents in part; withheld from Plaintiffs 30 documents in full; and referred one document to the Drug Enforcement Agency (“DEA”) for direct reply to Plaintiffs. Id. Throughout the search process, the State Department consulted the Federal Bureau of Investigation (“FBI”) and the DEA for their views on a portion of responsive documents and implemented the FBI and DEA's withholding recommendations. Def. MSJ at 3, 9 n.3. The State Department submitted a Vaughn index explaining the basis for its withholdings, including the ones it implemented on behalf of the FBI and DEA. See generally page 128 of Def. MSJ (“State Vaughn Index”). The FBI and DEA also submitted their own declarations and Vaughn indexes. See Seidel Decl., located at page 180 of Def. MSJ; page 207 of Def. MSJ (“FBI Vaughn Index”); Hertel Decl., located at page 220 of Def. MSJ; page 233 of Def. MSJ (“DEA Vaughn Index”).

II. LEGAL STANDARD

The purpose of FOIA “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA was intended “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks omitted). FOIA requests thus provide individuals with the opportunity to obtain access to federal agency records, except to the extent that such records are protected from public disclosure by one of nine exemptions. See 5 U.S.C. § 552(a)(3), (a)(4)(B), (b), (c); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); Jud. Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017).

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see, e.g., Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988) (concluding that unsubstantiated claims of factual controversies cannot defeat a summary judgment decision in a FOIA case). FOIA cases are typically resolved through summary judgment because in FOIA cases there is rarely any factual dispute; instead, these cases center on how the law is applied to the records at issue. See Pinson v. Dep't of Just., 236 F.Supp.3d 338, 352 (D.D.C. 2017) (“FOIA cases typically and appropriately are decided on motions for summary judgment.” (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009))); see also Gray v. Southwest Airlines Inc., 33 Fed.Appx. 865, 868 n.1 (9th Cir. 2002) (citing Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir. 1996)). Accordingly, in a FOIA suit, an agency is entitled to summary judgment “if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.'” Prop. of the People, Inc. v. Off. of Mgmt. and Budget, 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017)). “This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately has the onus of proving that the documents are exempt from disclosure.'” Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)); see also Stonehill v. U.S. Dep't of Just. Tax Div., No. 19-cv-03770, 2022 WL 407145, at *14 (D.D.C. Feb. 10, 2022) (“The government agency bears the burden of justifying its withholding of any requested material.”).

In a FOIA suit, the court shall determine a motion for summary judgment de novo. See 5 U.S.C. § 552(a)(4)(B); Life Extension Found., Inc. v. IRS, 915 F.Supp.2d 174, 179 (D.D.C. 2013). Therefore, when assessing non-disclosure decisions in a FOIA action, the court may rely solely on “affidavits or declarations if they describe ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Life Extension Found., 915 F.Supp.2d at 179 (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)); see also Pronin v. Fed. Bureau of Prisons, No 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Scudder v. Cent. Intel. Agency, 254 F.Supp.3d 135, 140 (D.D.C. 2017) (quoting Jud. Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal citations omitted)). However, exemptions are to be “narrowly construed, ” and “conclusory and generalized allegations of exemptions are unacceptable.” Bloche v. Dep't of Def., 370 F.Supp.3d 40, 50 (D.D.C. 2019) (quoting Morley v. CIA, 508 F.3d 1108, 1115 (D.C. Cir. 2007)); Prop. of the People, Inc., 330 F.Supp.3d at 380 (quoting Morley, 508 F.3d at 1114-15). Accordingly, an agency must do more than provide “summary...