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Nikaj v. United States Department of State

United States District Court, W.D. Washington, Seattle

June 25, 2019

SILVANA NIKAJ, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the parties' cross motions for summary judgment (Dkt. Nos. 18, 20). Having thoroughly considered the parties' briefing and the relevant record, the Court hereby GRANTS Defendant's motion and DENIES Plaintiffs' motion for the reasons explained herein.

         I. BACKGROUND

         Plaintiffs Silvana Nikaj and her attorneys, Carney & Marchi, P.S., submitted a public records request seeking documents “relate[d] to [Plaintiff Nikaj's] 2004, 2008, and 2014 nonimmigrant visa refusals, ” pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. (Dkt. No. 19-2.) In response to that request, Defendant United States Department of State (the “Government” or “Defendant”) informed Plaintiffs that it had located 16 responsive records. (Dkt. No. 19-10.) Defendant informed Plaintiffs that it would release 2 of the documents in full, but that it was withholding 12 of the documents in full and 2 of the documents in part. (Id.) Plaintiffs unsuccessfully appealed the Government's decision. (Dkt. No. 19-12.) Subsequently, Plaintiffs filed this lawsuit seeking to compel Defendant to produce all documents it identified as responsive to Plaintiffs' FOIA request. (Dkt. No. 1.) The parties have both moved for summary judgment on the issue of whether Defendant properly withheld documents pursuant to FOIA Exemptions 3, 6, and 7. (Dkt. No. 18, 20.)

         II. DISCUSSION

         A. FOIA Motion for Summary Judgment Legal Standard

         Because the facts are rarely in dispute in a FOIA case, the Court need not ask whether there is a genuine dispute of material fact. Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). Rather, the standard for summary judgment in a FOIA case generally requires a two-step inquiry. First, the Court must determine whether the Government fully discharged its obligations under FOIA by establishing that it conducted a search “reasonably calculated” to uncover all responsive documents. Zemansky v. U.S. Envtl. Prot. Agency, 767 F.2d 569, 571 (9th Cir. 1985) (citing Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Then, the Court must decide if the information or redactions that the Government did not disclose fall within a FOIA exemption. See 5 U.S.C. §§ 552(b)(1)-(9). This burden may be satisfied with a Vaughn index describing the withheld material, explaining the reasons for nondisclosure, and demonstrating that reasonably segregable material has been released, all with reasonable specificity. See Bowen v. U.S. Food & Drug Admin., 925 F.2d 1225, 1227 (9th Cir. 1991). These indexes are given a presumption of good faith and that presumption “cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard Servs., Inc., v. Secs. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). The burden of proof for both inquiries is on the Government and the Court reviews the Government's response to the FOIA request de novo. 5 U.S.C. § 552(a)(4)(B). The parties do not dispute that the Government conducted a search “reasonably calculated” to uncover all responsive documents; instead, they dispute whether Defendant properly withheld material. (See Dkt. Nos. 18, 20.)

         B. FOIA Exemptions

         The Government claims that all 14 documents are properly withheld under either Exemptions 3, 6, or 7, or a combination thereof. (Dkt. No. 18.) Plaintiffs argue that none of the Government's claimed exemptions warrant non-disclosure of the responsive documents. (Dkt. No. 20.)

         1. Exemption 3

         Under 5 U.S.C. § 552(b)(3)(A), information that is protected by a separate statute is exempted from disclosure, provided that the statute (1) “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue;” or (2) “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” To determine whether the Government has properly invoked Exemption 3, the Court must: (1) determine whether the statute qualifies as an exempting statute under Exemption 3; and (2) determine whether the requested material falls within the scope of the exempting statute. See Cent. Intelligence Agency v. Sims, 471 U.S. 159, 167-68 (1985).

         The Government argues that the Immigration and Nationality Act (INA), 8 U.S.C. § 1202(f), prohibits the disclosure of all the withheld materials in this case. (Dkt. No. 18 at 6.) 8 U.S.C. § 1202(f) qualifies as an exempting statute under Exemption 3. See Wiener v. Fed. Bureau of Investigation, 943 F.2d 972, 982 (9th Cir. 1991). Thus, the only issue is whether the requested material falls within the scope of the statute. The statute prohibits the disclosure of material “pertaining to the issuance or refusal of visas or permits to enter the United States . . . .” 8 U.S.C. § 1202(f). The Government withheld 12 documents in full and 2 documents in part pursuant to Exemption 3. (Dkt. No. 18 at 7.) Plaintiffs argue that not all of the withheld material falls within the scope of § 1202(f) because they only wanted material related to Plaintiff Nikaj's visa applications, and not necessarily their denials, and because “not all documents referenced in the denial were withheld to address the specific denial of the visa.” (Dkt. No. 20 at 5-6.)

         Both arguments are without merit. Plaintiffs' FOIA request specifically asks for documents related to Plaintiff Nikaj's “2004, 2008, and 2014 non-immigrant visa refusals.” (Dkt. No. 19-2.) The FOIA request's own language requests documents that would fall squarely within 8 U.S.C. § 1202(f). And indeed, the Vaughn index's descriptions of documents withheld all pertain to the visas' denials. (See Dkt. No. ...


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