Judicial Watch, Inc. v. U.S. Dept. of State

• Decision Date: 03 September 2009
• Docket Number: Civil No. 08-1011 (RJL).
• Citation: 650 F.Supp.2d 28
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

650 F.Supp.2d 28

JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.

Civil No. 08-1011 (RJL).

United States District Court, District of Columbia.

September 3, 2009.

COPYRIGHT MATERIAL OMITTED

Paul J. Orfanedes, Jason B. Aldrich, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Alan Burch, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

The plaintiff, Judicial Watch, has sued the U.S. Department of State (the "government" or "State Department") for failing to disclose information pursuant to a Freedom of Information Act ("FOIA") request. The State Department has filed a Motion for Summary Judgment, asserting the information has been properly withheld under exemptions to FOIA. For the following reasons, I agree and GRANT the State Department's summary judgment motion.

I. Background

In April 2008, Judicial Watch sent a FOIA request, seeking information relating to a Mexican drug smuggler who was shot in an incident involving two U.S. Border Patrol Agents and relating to the agents' prosecution. (Compl. ¶ 5.) Specifically, Judicial Watch sought: communications regarding the drug smuggler between the Department of State and the Government of Mexico, between the Department of State and the Department of Justice, and between the Department of State and the Department of Homeland Security; records of the Diplomatic Security Service regarding the two agents' prosecution, and information regarding the participation of Department of State personnel in facilitating the drug smuggler's later, lawful entry into the United States for the purposes of receiving medical treatment, meeting with federal prosecutors regarding his immunity, and testifying in the agents' trial. (Pl.'s Opp'n to Mot. for Summ. J. [Dkt. # 13] at 3-4; Compl. ¶ 5.)¹ Judicial Watch believes the information it seeks may answer questions regarding the prosecution, the involvement of the Mexican government, and the drug smuggler's receipt of prosecutorial immunity. (Pl.'s Opp'n to Mot. for Summ. J. at 2.) While the government was required to respond to the FOIA request by June 3, 2008, it had not responded as of June 12, when Judicial Watch filed this suit to compel production of the documents. (Compl. ¶ 8-9.)

In September 2008, the State Department produced forty-two documents in full and portions of seventeen additional documents. (Def.'s Mot. for Summ. J. [Dkt. # 10] at 2-3; Decl. of Margaret P. Grafeld ("Grafeld Decl.") [Dkt. 10-2] ¶¶ 6-10.)² It withheld five documents, totaling ten pages, related to the individuals' entry into the United States. (Grafeld Dec. ¶ 19.) These documents were retrieved from a database used to determine whether the individuals are eligible for visas ("the visa database documents").³ (Id.) The government withheld these documents on the basis that they fell within a FOIA exemption that allows for withholding if disclosure is prohibited by law. (Id.) Specifically, the government argues that the Immigration and Nationality Act prohibits disclosure of the visa database documents. (Id. ¶ 17-19 (citing 8 U.S.C. § 1202(f) and 5 U.S.C. § 552(b)(3)).)

Additionally, the State Department withheld two pages prepared by a Bureau of Diplomatic Security Special Agent on July 27, 2007, as part of the internal preparation for a State Department official's testimony relating to the shooting incident before a congressional panel ("congressional hearing notes").⁴ (Grafeld Decl. ¶¶ 28-29.) Ultimately, the official did not disclose the information in the withheld portions of the congressional hearing notes. (Id. ¶ 29.) Thus, the State Department concluded that the documents were exempt from disclosure pursuant to the deliberative process privilege FOIA exemption. (Id. ¶ 28-29); 5 U.S.C. § 552(b)(5).

LEGAL STANDARD

"When assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C.2009) (citing 5 U.S.C. § 552(a)(4)(B)). De novo review of an agency decision "requires the Court to `ascertain whether the agency has sustained its burden of demonstrating that the documents requested ... are exempt from disclosure under the FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C.Cir.2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir. 1998) (internal quotations omitted)). Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). In rendering its decision, a court will draw "all justifiable inferences" in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

ANALYSIS

FOIA embraces a general philosophy of full disclosure of Government records, unless information is specifically exempted by the Act itself. Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C.Cir. 1996); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973); Judicial Watch, Inc., 598 F.Supp.2d at 95. Exemptions from disclosure "must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act." Vaughn, 484 F.2d at 823.

I. The Visa Database Documents.

The State Department has withheld the visa database documents pursuant to Exemption (b)(3), (Grafeld Decl. ¶ 19), which allows withholding if another statute requires the documents to be withheld, and does so "in such a manner as to leave no discretion on the issue," 5 U.S.C § 552(b)(3)(A).⁵ In determining whether the government properly invoked this exemption, courts should "not closely scrutinize" the withheld documents' contents but rather determine only (1) "whether there is a relevant statute," and (2) "whether the document falls within that statute." Perry-Torres v. U.S. Dep't of State, 404 F.Supp.2d 140, 143 (2005) (internal quotation and alternations omitted).

First, the relevant statute here is the Immigration and Nationality Act, which prohibits the government from disclosing Department of State records that "pertain[] to the issuance or refusal of visas or permits to enter the United States." 8 U.S.C. § 1202(f). The statute prohibits disclosure "not only of the information supplied by the visa applicant, but also any information revealing the thought processes of those who rule on the application." Perry-Torres, 404 F.Supp.2d at 143 (internal quotation omitted).

Second, the withheld information falls within the statute, as it was retrieved from a database used to determine visa eligibility and thus "pertain[s] to the issuance or refusal of visas." 8 U.S.C. § 1202(f). Indeed, Judicial Watch itself stated it "is only interested in the [visa database] documents to the extent that they provide information about how [the drug smuggler] himself obtained a visa or visas for entry into the United States," (Pl.'s Opp'n to Mot. for Summ. J. at 8-9), which is exactly the type of information of which the statute prohibits disclosure, see 8 U.S.C. § 1202(f).

Judicial Watch, not surprisingly, argues that the government needs to provide additional information about these documents to justify withholding. (Pl.'s Opp'n to Mot. for Summ. J. at 7-8 (citing Wiener v. FBI, 943 F.2d 972, 982 (9th Cir.1991)).) I disagree. The State Department not only described the general contents and purpose of the visa database, but it also described the documents individually. (See Grafeld Decl. ¶¶ 19 (describing the nature and purpose of the visa of each document).) Accordingly, sufficient information has been provided to determine that the statute prohibits the documents' disclosure.

Finally, the Court also finds the State Department properly considered whether portions of the documents are non-exempt and could be disclosed. See Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 259-60 (D.C.Cir. 1977). The government, of course, has an obligation to reasonably segregate and disclose all non-exempt material, unless the material is "inextricably intertwined with exempt portions." Id. at 260. The State Department complied with its obligations here, having found that the documents may not be segregated and released because the records all "pertain in their entirety to visa issuance and refusal." (Grafeld Decl. ¶ 41.) As a result, the entire contents of the five visa database documents are exempt from disclosure.

II. The Congressional Hearing Notes.

Next, the State Department withheld notes taken in preparation for a congressional hearing on the basis that the notes are covered by the deliberative process privilege and thus Exemption (b)(5). I agree. 5 U.S.C. § 552(b)(5); (Grafeld Decl. ¶¶ 29, 31, 33, 34).⁶

The deliberative process privilege protects "any documents that reveal an agency's deliberative process in reaching policy decisions," Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.Supp.2d 252, 258 (D.D.C.2004), and notes taken by government officials, such as the notes at issue here, are often made as part of the agency's internal decisionmaking process, Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 321 (D.C.Cir. 2006). As our Court of Appeals has pointed out, notes tend to be "selective and deliberative," and disclosing them would "hinder government officials from debating issues internally, deter them from giving candid advice, and lower the overall quality of the government decisionmaking process." Id. at 321; see also Judicial Watch, Inc. v. Clinton, 880 F.Supp. 1, 13 (D.D.C. 1995). Although the harm of releasing the notes may be self-evident, agencies must nevertheless "provide a relatively detailed justification, specifically identifying the reasons why" the exemption applies to "the particular part of a withheld document." Mead Data...