Beltranena v. U.S. Dep't of State, 1:09–CV–01457 BJR.

• Citation: 821 F.Supp.2d 167
• Decision Date: 21 October 2011
• Docket Number: No. 1:09–CV–01457 BJR.,1:09–CV–01457 BJR.
• Parties: Fernando Linares BELTRANENA, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

821 F.Supp.2d 167

Fernando Linares BELTRANENA, Plaintiff,

v.U.S. DEPARTMENT OF STATE, Defendant.

No. 1:09–CV–01457 BJR.

United States District Court, District of Columbia.

Oct. 21, 2011.

W. Asa Hutchinson, The Asa Hutchinson Law Group PLC, Rogers, AR, William A. Hutchinson, III, Atlantic Law Group, LLC, Leesburg, VA, for Plaintiff.

Mitchell P. Zeff, U.S. Attorney's Office, Washington, DC, for Defendant.

ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT

BARBARA JACOBS ROTHSTEIN, District Judge.

This Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., case comes before the court on Defendant's Renewed Motion for Summary Judgment [Docket No. 27; Filed June 11, 2011] (“Renewed Motion”). Plaintiff responded [Docket No. 28; Filed June 23, 2011] (“Opp.”), and Defendant replied [Docket No. 29; Filed July 8, 2011] (“Reply”). The Renewed Motion is now ripe for resolution. At issue is the U.S. Department of State's (the “Department”), response to Plaintiff Fernando Linares Beltranena's FOIA request for documents relating to the denial of his application for a Non–Immigrant Visa (“NIV”). For the reasons set forth below, the court grants Defendant's Renewed Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND ¹

Plaintiff Fernando Linares Beltranena is a resident and citizen of Guatemala and an attorney who does business in the United States. On November 13, 2006, Mr. Beltranena submitted a Non–Immigrant Visa application (“NIV”) to the Defendant, the United States Department of State. On May 8, 2007, the Department's Consul General in Guatemala notified Mr. Beltranena that his application had been denied on the basis of a permanent ineligibility for a U.S. Visa under Section 212(a)(C)(ii) of the Immigration and Nationality Act, which bars from entry into this country any citizen of a foreign country who the immigration office believes has played a role in the illicit trafficking of a controlled substance.

On September 12, 2007, Mr. Beltranena submitted a FOIA request to the Department for the reasons and evidence related to the refusal of his 2006 Visa application, as well as the reasons and evidence relating to the revocation of a U.S. Visa that had been issued to him in 2003. The Department responded on December 20, 2007, stating that it would begin the processing of his request. Mr. Beltranena's FOIA request was assigned the Department's internal case control number 200705478. By e-mail dated February 14, 2008, the Department informed Mr. Beltranena that it had initiated searches in three file systems: Central Foreign Policy Records (the principal record system of the Department of State; Office of Visa Services; and the U.S. Embassy in Guatemala. The email contained a status report on the request:

The search in the Office of Visa Services has been completed and the Office of Visa Services will be responding to you directly once the material has been reviewed. The Central Foreign Policy Record search has been completed, and is currently being prepared for review. The search of the U.S. Embassy in Guatemala has not been completed.

On March 6, 2008, the Department's Office of Visa Services informed Mr. Beltranena that it had searched its records, located, and reviewed 10 documents relating to his FOIA request. The Office of Visa Services withheld nine of those documents in full and one document in part,² explaining:

The 10 documents in question pertain to State Department records relating to the application for a visa or permit to enter the United States. As such, they are separately protected from disclosure by Section 222(f) [of the Immigration and Nationality Act] and are exempt from release by the (b)(3) exemption to the [FOIA]. However, ... we agree to release one document in part, as this document originated with you or someone acting on your behalf, and release would therefore not breach its confidentiality.The Office of Visa Services noted that Mr. Beltranena could appeal its decision to withhold those records to the Chairman of the Department's Appeals Review Panel. By letter of April 2, 2008, Mr. Beltranena was informed that “[t]he search of the Central Foreign Policy Records was completed, resulting in the retrieval of three documents responsive to the FOIA request. This letter stated that all three of the documents would be withheld in full. The Department stated that it would withhold two of the documents pursuant to FOIA's exemption for matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order[.]” 5 U.S.C. § 552(b)(1). Additionally, the Department indicated that it would withhold all three documents pursuant to FOIA's exemption prohibiting the disclosure, in defined circumstances, of matters that are “specifically exempted from disclosure by statute[.]” 5 U.S.C. § 552(b)(3).³ This letter likewise informed Mr. Beltranena of his right to appeal the decision.

On April 11, 2008, Mr. Beltranena filed an appeal. Nearly a year later, on March 17, 2009, Mr. Beltranena inquired about the status of his appeal. The Department responded on April 13, 2009, stating that it expected Mr. Beltranena's appeal to be reviewed in the near future. The Department also explained that because it had failed to respond to his appeal within twenty days, Mr. Beltranena was deemed to have exhausted his administrative remedies, and was free to seek judicial review. Mr. Beltranena filed his complaint on August 3, 2009. His complaint requests declaratory and injunctive relief to compel the disclosure and release of agency records he alleges were improperly withheld by the Department.

On December 8, 2009, several months after Mr. Beltranena filed his complaint, the Department informed him by letter that it had completed its search of the records of the United States Embassy in Guatemala City, Guatemala. According to the Department, that search resulted in the retrieval of 13 documents responsive to Mr. Beltranena's FOIA request. The Department informed Mr. Beltranena that eleven of those documents were being withheld in full, one document was being released with excisions, and one document needed to be reviewed by another agency. Furthermore, the Department indicated that additional disclosures could now be made, and that it had identified additional responsive documents, specifically: (1) a document previously withheld in part could now be released in full; (2) one additional document had been retrieved from the Central Foreign Policy Records and was being released in part; and (3) twenty-nine additional documents had been retrieved from the Office of Visa Services—twenty six of which were being withheld in full, one was being released in part, and two were being released in full.

On December 23, 2009, U.S. District Court Judge Paul L. Friedman ordered the Department to produce to Mr. Beltranena a Vaughn index,⁴ along with all non-exempt, responsive documents by February 12, 2010, and set a briefing schedule for dispositive motions. See Minute Order, Dec. 23, 2009. On January 5, 2010, Mr. Beltranena served seven interrogatories on the Department. In response, the Department filed a motion for a protective order, requesting that the court prohibit the discovery sought by Mr. Beltranena, as well as any other discovery in this case, pending the resolution of the Department's forthcoming motion for summary judgment. The Department moved for partial summary judgment, attaching the Declaration of Margaret P. Grafeld (“First Declaration of Margaret P. Grafeld”) in support. In its motion, the Department argued that it released all non-exempt responsive documents to Mr. Beltranena, except for one document that was at that time pending review by another agency. The Department subsequently filed a supplemental motion for summary judgment, addressing the one outstanding document, attaching a supplemental Vaughn declaration from Ms. Grafeld (“Second Declaration of Margaret P. Grafeld”). The Department indicated that the document at issue had been reviewed by the United States Drug Enforcement Administration (“DEA”) and that the DEA had determined that the document was in fact properly a record of the Department. The Department then reviewed the document and decided that it should be withheld in full. In short, the Department identified a total of fifty-six documents that it determined to be responsive to Mr. Beltranena's FOIA request. Fifty of those documents have been withheld in full; three have been withheld in part and disclosed in part; and three have been released in full.

On March 17, 2011, Judge Friedman issued an Opinion and Order, Beltranena v. Clinton, 770 F.Supp.2d 175 (D.D.C.2011), granting Defendant's motion for a protective order and denying both of Defendant's motions for summary judgment without prejudice. [Docket No. 27] Judge Friedman reviewed the Department's two Vaughn declarations, and was underwhelmed by the lack of detail provided by Ms. Grafeld. Id. at 183. For example, in these two declarations, Ms. Grafeld did not describe the persons who performed the searches or how the searches were performed. Id. Ms Grafeld stated only that three file systems had been searched and that responsive records were discovered. Id. Judge Friedman characterized Ms. Grafeld's statements as “conclusory,” and found them lacking in detail sufficient to assure the court that the Department had conducted searches reasonably calculated to uncover all relevant documents. Id. “To satisfy its burden, the Department must describe what records were searched, by whom, and through what process [.]” Id. at 184 (internal quotation marks and citations omitted). Judge Friedman deferred consideration of the exemptions claimed. Id. at 184, fn. 5. However, he noted that even assuming that the exemptions were properly applied, the...