UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
OLENA ZYNOVIEVA,
Plaintiff, Civil Action No. 19-3445 (RDM) v.
U.S. DEPARTMENT OF STATE,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Olena Zynovieva submitted a request under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to the U.S. Department of State (“the Department”), seeking records
concerning her own prior visa applications. The Department withheld all but three of the records
responsive to Plaintiff’s request under FOIA Exemption 3 and Section 222(f) of the Immigration
and Nationality Act (“INA”), which requires the Department to keep confidential records
“pertaining to the issuance or refusal of visas,” 8 U.S.C. § 1202(f). In this action, Plaintiff
challenges those withholdings, and the parties have cross-moved for summary judgment. Rather
than justify its withholdings on a document-by-document basis, the Department issued a “no
number, no list” response, in which it identifies the categories of visa-processing records that the
Department generally maintains and attests that the withheld records all fall within those
categories, but does not disclose the number or specific nature of each withheld record. This
approach appears to be a novel one, and, at least on the present record, the Court is not satisfied
that the Department’s refusal to describe the records at issue in greater detail was necessary to
protect information exempt from disclosure. The Court thus concludes that the Department has
not yet carried its burden to justify its withholdings under FOIA Exemption 3 and the INA. At
1 the same time, however, it appears likely that some or all of the records in question are protected
by Exemption 3, and thus it would be premature to grant summary judgment to Plaintiff. The
Court will, accordingly, DENY the Department’s motion for summary judgment, Dkt. 15, and
will also DENY Plaintiff’s cross-motion for summary judgment, Dkt. 16.
I. BACKGROUND
Plaintiff is a citizen of Ukraine and a resident of the United Arab Emirates. Dkt. 1 at 2
(Compl. ¶ 2). Acting through counsel, she submitted a FOIA request to the Department on
August 13, 2019. Dkt. 15-2 at 1 (Def.’s SUMF ¶ 1). That request sought all information in the
Department’s Consular Lookout and Support System (“CLASS”) database concerning herself, as
well as all documents in the Department’s files that Plaintiff had submitted in connection with
her past visa applications, from 2009 to the present. Id.; see also Dkt. 15-3 at 2–3 (Stein Decl.
¶ 4). According to the Department, the CLASS database “is used by the Department of State and
other agencies to perform namechecks on visa and passport applicants to identify individuals
who may be ineligible for issuance or require other special action.” Dkt. 15-1 at 8; Dkt. 15-2 at 1
(Def.’s SUMF ¶ 2).
Having received no response to her request, Plaintiff filed this lawsuit on November 15,
2019. Dkt. 1. The Department responded to her FOIA request on March 12, 2020. Id. 15-2 at 2
(Def.’s SUMF ¶ 4). The Department produced three records in part, totaling eleven pages. Id.
Those records were copies of visa application forms that Plaintiff had submitted to the
Department in 2009, 2015, and 2016. Dkt. 16-2 at 6 (Pl.’s SUMF ¶ 38). The Department
withheld all information about the other visa records responsive to Plaintiff’s request, including
the number of such records, pursuant to FOIA Exemption 3. Dkt. 15-2 at 2 (Def.’s SUMF ¶ 4).
That exemption applies to records “specifically exempted from disclosure by statute,” so long as
2 the statute in question “requires that the matters be withheld from the public in such a manner as
to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Here, the Department invoked
§ 222(f) of the INA, which provides that:
The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, except that [such records may be provided to courts or foreign governments in certain circumstances].
8 U.S.C. § 1202.
The Department then moved for summary judgment with respect to its withholdings, Dkt.
15, and Plaintiff cross-moved for summary judgment, Dkt. 16. In support of its motion, the
Department submitted a declaration from Eric F. Stein, who is the Director of the Department’s
Office of Information Programs and Services. Dkt. 15-3 (Stein Decl.). In response to certain
arguments raised in Plaintiff’s cross-motion, the Department submitted a supplemental
declaration from Susan C. Weetman, the Office’s Deputy Director, with their reply brief. Dkt.
19-1 (Weetman Decl.). Generally, evidence submitted in reply comes too late. See Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). But here, because the
Department moved for summary judgment first, Plaintiff had an opportunity to—and in fact
did—respond to the Department’s supplemental filing in her final reply brief. Dkt. 22. As such,
the Court will consider both declarations in deciding the pending motions, which are now ripe
for decision.
II. LEGAL STANDARD
Congress enacted FOIA “to ensure public access to a wide range of government reports
and information[,] . . . to pierce the veil of administrative secrecy[,] and to open agency action to 3 the light of public scrutiny.” Bartko v. DOJ, 898 F.3d 51, 61 (D.C. Cir. 2018) (quotation marks
and citations omitted). “The basic purpose of FOIA is to ensure an informed citizenry, [which
is] vital to the functioning of a democratic society[] [and] 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). Simply put, “FOIA protects the basic right of the public ‘to be informed
about what their government is up to.’” Hall & Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir.
2020) (quoting Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 827 F.3d 145, 150 (D.C.
Cir. 2016)). FOIA “requires agencies to disclose records upon request,” unless those records
“fall within one of nine exemptions,” which the Court construes narrowly. Pavement Coatings
Tech. Council v. U.S. Geological Surv., No. 20-5035, 2021 WL 1823300, at *4 (D.C. Cir. May 7,
2021) (citations omitted). The agency bears the burden of justifying its withholdings, and the
Court reviews an agency’s decision to withhold records or portions of records de novo. 5 U.S.C.
§ 552(a)(4)(B); Loving v. DOD, 550 F.3d 32, 37 (D.C. Cir. 2008).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. Shapiro v. DOJ, 153 F. Supp. 3d 253, 268 (D.D.C. 2016). To prevail on
a summary judgment motion, the moving party must demonstrate that there are no genuine issues
of material fact and that she is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a FOIA case, a court deciding a summary
judgment motion must “ascertain whether the agency has sustained its burden of demonstrating
that the documents requested are . . . exempt from disclosure.” ACLU v. DOJ, 655 F.3d 1, 5
(D.C. Cir. 2011) (quotation marks omitted). An agency can carry its burden and prevail on a
motion for summary judgment by presenting affidavits that “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
4 logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Elec. Frontier Found. v. DOJ, 739
F.3d 1, 7 (D.C. Cir. 2014) (quotation marks omitted). In many cases, an agency may carry its
burden by providing a Vaughn index that “elucidates, on a document-by-document basis, the
rationale for the FOIA exemptions claimed.” Hall & Assocs. v. EPA, No. 18-cv-1749, 2021 WL
1226668, at *3 (D.D.C. Mar. 31, 2021) (citing Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C.
Cir. 1973)). “The description and explanation the agency offers should reveal as much detail as
possible as to the nature of the document, without actually disclosing information that deserves
protection.” Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).
III. ANALYSIS
The Department withheld all but three records responsive to Plaintiff’s request under
Exemption 3 and 8 U.S.C. § 1202(f). Exemption 3 applies to records “specifically exempted
from disclosure by statute,” so long as the statute in question “requires that the matters be
withheld from the public in such a manner as to leave no discretion on the issue” or “establishes
particular criteria for withholding or refers to particular types of matters to be withheld.”
5 U.S.C. § 552(b)(3). Plaintiff does not dispute—and D.C. Circuit precedent makes clear—that
8 U.S.C. § 1202(f), which protects the confidentiality of records related to visa processing,
qualifies as a withholding statute under Exemption 3. See Dkt. 15-1 at 11; Dkt. 16-1 at 19;
Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 740–41 (D.C. Cir. 1983).
Plaintiff contends, however, that the Department has not carried its burden of
demonstrating that the records withheld in this case fall within the scope of 8 U.S.C. § 1202(f).
Dkt. 16-1 at 11. In his declaration, Stein asserts that “disclosing the number of responsive visa
records, or describing those records in a Vaughn index, would reveal information that [§ 1202(f)]
5 requires the Department to keep confidential.” Dkt. 15-3 at 6 (Stein Decl. ¶ 13). For that reason,
the Department “is not able to provide a Vaughn index of the records withheld in response to this
particular FOIA request.” Id. Instead, the Department provides a table that lists thirteen
categories “of visa records that are generally kept (as opposed to in reference to this individual
case)” and asserts that “[t]he record(s) being withheld in this case each correspond to one of the
document types described in [that] table.” Id. at 6–7 (Stein Decl. ¶¶ 13–14). The Department
contends that this type of “no number, no list” response is justified in “rare cases” where
“information about the number or content of withheld responsive records would reveal
information exempt from disclosure.” Id. at 7–8 (Stein Decl. ¶ 17); Dkt. 15-1 at 13 (“The
Department’s refusal to identify the number of the records at issue was appropriate . . . because
disclosing the number of withheld records or providing a description of each of those records
would reveal information that § 1202 requires the Department to keep confidential.”). Plaintiff
responds that the Department’s “vague affidavit outlines only documents that might be in its files
and concerns that might justify its withholdings.” Dkt. 16-1 at 6. She argues that the
Department cannot carry its burden under FOIA while “refus[ing] to provide any detail about the
remainder of the records that it is withholding.” Id.
As a general matter, a document-by-document Vaughn index, or a detailed declaration
that approximates a Vaughn index, plays an important role in FOIA litigation. As the D.C.
Circuit has explained, “the typical FOIA case ‘distorts the traditional adversary nature of our
legal system’s form of dispute resolution.’” Jud. Watch, Inc. v. FDA, 449 F.3d 141, 145–46
(D.C. Cir. 2006) (quoting King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987)). A FOIA requester
“‘faces an asymmetrical distribution of knowledge’ where the agency alone possesses, reviews,
discloses, and withholds the subject matter of the request.” Id. at 146 (quoting King, 830 F.2d at
6 218). As such, the agency would possess “a nearly impregnable defensive position save for the
fact that the statute places the burden ‘on the agency to sustain its action.’” Id. (quoting 5 U.S.C.
§ 552(a)(4)(B)). On the other hand, “the agency has the difficult obligation to justify its actions
without compromising its original withholdings by disclosing too much information.” Id. A
Vaughn index balances these competing interests and therefore “restore[s] a healthy adversarial
process” by “forc[ing] the government to analyze carefully any material withheld;” “enabl[ing]
the trial court to fulfill its duty of ruling on the applicability of the exemption;” and “giving the
requester as much information as possible, on the basis of which [she] can present [her] case to
the trial court.” Id. (internal quotation marks omitted).
An agency’s withholdings under Exemption 3 are sometimes amenable to more
categorical treatment. As the D.C. Circuit has recognized, “Exemption 3 differs from other
FOIA exemptions in that its applicability depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a relevant statute and the inclusion of
withheld material within that statute’s coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir.
1978). Nevertheless, an agency invoking Exemption 3 must demonstrate its applicability in a
“nonconclusory and detailed fashion,” id. at 351, and must provide “the kind of detailed,
scrupulous description [of the withheld documents] that enables a District Court judge to
perform a searching de novo review,” Church of Scientology of Ca., Inc. v. Turner, 662 F.2d
784, 786 (D.C. Cir. 1980). At bottom, no matter what form an agency’s submissions in support
of its withholdings take, the agency must “give the reviewing court a reasonable basis to evaluate
the claim of privilege.” Gallant v. NLRB, 26 F.3d 168, 172–73 (D.C. Cir. 1994).
The question here is whether the Department’s “no number, no list” response, by
identifying the categories of records that the Department generally maintains and averring that
7 the withheld records fall within some or all of those categories, has “give[n] the [Court] a
reasonable basis to evaluate the claim of privilege.” Id.
As an initial matter, although the Court draws some guidance from the limited discussion
of “no number, no list” responses in a few prior cases, see, e.g., ACLU v. CIA, 710 F.3d 422, 433
(D.C. Cir. 2013); N.Y. Times Co. v. DOJ, 756 F.3d 100, 121–23 (2d Cir. 2014), the Court
concludes that those cases do not control the resolution of the pending motions, for several
reasons. First, both ACLU and N.Y. Times dealt with FOIA requests for (mostly classified)
records pertaining to the government’s use of unmanned aerial vehicles to carry out targeted
killings—subject matter that implicates national security interests of a higher order than are
involved in routine visa processing. Second, the D.C. Circuit in ACLU did not approve the use
of a “no number, no list” response but rather remanded for the District Court to consider the
question in the first instance. ACLU, 710 F.3d at 434. Indeed, at the time that the court of
appeals considered the issue, “[n]o government affidavit ha[d] yet been filed in th[e] case that
even attempt[ed] to justify a ‘no number, no list’ response.” Id. The D.C. Circuit merely
observed in dicta that “[s]uch a response would only be justified in unusual circumstances, and
only by a particularly persuasive affidavit.” Id. at 433. In any event, both the Department and
Plaintiff now seem to agree that ACLU is distinguishable. Although the Department relied on
ACLU in its opening brief, Dkt. 15-1 at 16–17, its reply brief dismisses Plaintiff’s effort to
distinguish ACLU as “a straw man” because that case’s discussion of “no number, no list”
responses provides “inapt standards applicable to [] distinguishable circumstances,” Dkt. 19 at 8–
9. The Court thus concludes, as the parties now acknowledge, that no binding precedent
squarely addresses the use of “no number, no list” responses in circumstances like those
presented in this case.
8 That said, the D.C. Circuit’s decision in ACLU does provide some helpful guidance for
the Court’s consideration of whether a “no number, no list” response was appropriate in the
present circumstances. First, the Court can grant summary judgment to the Department only if
its “no number, no list” response is sufficient to carry its burden of justifying its withholdings
under FOIA. Second, given the D.C. Circuit’s direction that such a response “would only be
justified in unusual circumstances, and only by a particularly persuasive affidavit,” the
Department would need to demonstrate that withholding even the number of records at issue is
necessary to protect “validly exempt information.” ACLU, 710 F.3d at 433.
The Court begins with the adequacy of the Department’s justification for its withholdings
under Exemption 3. Contrary to Plaintiff’s suggestions, the Court concludes that the Department
is not necessarily required to produce a Vaughn index in this case. Even in opinions extolling the
virtues of a Vaughn index, the D.C. Circuit has made clear that its “focus [is] on the functions of
the Vaughn index,” and “an agency may even submit other measures in combination with or in
lieu of the index itself.” Jud. Watch, Inc., 449 F.3d at 146. And in ACLU, the D.C. Circuit
observed that the “no number, no list” response itself “might be viewed as a kind of Vaughn
index, albeit a radically minimalist one.” 710 F.3d at 246. Nor is the agency necessarily
required to justify its Exemption 3 withholdings on a document-by-document basis, given that
“the sole issue for decision [under Exemption 3] is the existence of a relevant statute and the
inclusion of withheld material within that statute’s coverage.” Goland, 607 F.2d at 350. As the
D.C. Circuit has explained, “the government need not justify its withholdings document-by-
document; it may instead do so category-of-document by category-of-document, so long as its
definitions of relevant categories are sufficiently distinct to allow a court to determine whether
the specific claimed exemptions are properly applied.” Gallant, 26 F.3d at 173 (quotation marks,
9 citation, and alterations omitted). In situations in which “a claimed FOIA exemption consists of
a generic exclusion, dependent upon the category of records rather than the subject matter which
each individual record contains, resort to a Vaughn index is futile.” Church of Scientology of
Cal. v. IRS, 792 F.2d 146, 152 (D.C. Cir. 1986). In short, “nothing in the case law dictates what
form an agency’s description of the bases for its withholdings must take, but, regardless of the
form, the evidentiary material must provide ‘the reviewing court a reasonable basis to evaluate
[its] claim of privilege.’” Pejouhesh v. U.S. Postal Serv., No. 17-cv-1684, 2019 WL 1359292, at
*5 (D.D.C. Mar. 26, 2019) (alteration in original) (quoting Gallant, 26 F.3d at 173).
Here, the records withheld under § 1202(f) are amenable to categorical treatment. The
statute shields from disclosure all records “pertaining to the issuance or refusal of visas,” and
thus any classes of records that by their nature always relate to visa processing are categorically
exempt from disclosure. But that does not necessarily mean that the Stein and Weetman
declarations adequately justify the Department’s withholdings on a categorical basis, such that
the Department has carried its burden of demonstrating that Exemption 3 and § 1202(f) apply to
the withheld records. To carry its burden, the Department must “reveal as much detail as
possible as to the nature of the document[s], without actually disclosing information that
deserves protection.” Oglesby, 79 F.3d at 1176.
The Court concludes that the Department has not yet done enough to justify its
withholdings. As noted above, under Exemption 3, “the sole issue for decision is the existence
of a relevant statute and the inclusion of withheld material within that statute’s coverage,”
Goland, 607 F.2d at 350, but the Department still must demonstrate that Exemption 3 applies in
a “nonconclusory and detailed fashion,” id. at 351, that permits meaningful judicial review.
Here, Stein lists thirteen “types of visa records” that the Department generally maintains. Dkt.
10 15-3 at 6–7 (Stein Decl. ¶ 13). He describes each category in reasonably specific detail. For
instance, “Hit Text Reports” provide “fingerprint results requested in the course of processing
visa applications,” while “Independent Lookout Accountability” provides “the status of
background checks conducted in the course of processing visa applications.” Id. at 6. Stein goes
on to attest that the specific records withheld in this case “each correspond to one of the
document types described in the above table.” Id. at 7 (Stein Decl. ¶ 14). Although twelve of
the thirteen category descriptions refer to visa processing, the description for “Law Enforcement
Database System Report” indicates only that such reports contain “biographic information,
biometric indicators, and encounter data consolidated from various interagency systems for
individuals,” without specifically mentioning visas. Id. at 6 (Stein Decl. ¶ 13). To clear up any
ambiguity, however, Weetman declares that, “[t]o state it explicitly, the record(s) withheld here
are all visa records, pertaining to the issuance or denial of a visa.” Dkt. 19-1 at 2 (Weetman
Decl. ¶ 5). The Department agues that this is enough to establish that all of the records it
withheld fall into a category of records that pertains to the adjudication of visa applications,
which is all that § 1202(f) requires.
Plaintiff responds that the Department has failed to carry its burden because the
Department “has not even identified which of the various categories of documents actually are in
its files—just types of documents that might be.” Dkt. 22 at 19. It is true that the Department
does not identify precisely which of the thirteen categories of records encompass the documents
at issue here. But in the circumstances of this case, that might not matter. So long as all thirteen
categories include records that pertain exclusively to visa processing, and so long as each of the
contested records falls into one of those categories, then all of those records are shielded from
disclosure under Exemption 3 and § 1202(f).
11 With all of that said, however, the Court is still unpersuaded that the Department has
“giv[en] the requester as much information as possible, on the basis of which [she] can present
[her] case to the . . . [C]ourt.” Jud. Watch, Inc., 449 F.3d at 146 (internal quotation omitted).
Stein simply states in conclusory fashion that “[t]he record(s) being withheld in this case each
correspond to one of the document types” described as relating to visas. Dkt. 15-3 at 7 (Stein
Decl. ¶ 14). He does not say, however, who reviewed the records to make that determination or
what knowledge or experience that person brought to the task. He does not say whether that
person reviewed the responsive records one by one to ensure that each record fell into one of the
thirteen categories or whether, instead, the person simply assumed that the records must fall into
those thirteen categories, given that those are the “types of visa records that are generally kept,”
id. at 6 (Stein Decl. ¶ 13). Even if the Department cannot identify the number of records at issue,
it can surely describe the nature of its processing of the records in greater detail. Such an
explanation would give the Court greater confidence that the records Plaintiff seeks do, in fact,
all relate to visas.
Next, the Court turns to whether the “no number, no list” response was necessary to
protect important government interests in the present circumstances. Here again, the Court
concludes that the Department has not done quite enough to justify its approach. The
Department asserts that it cannot reveal the number or specific nature of the withheld records
without disclosing information that § 1202 is meant to protect. Disclosing the number of records
withheld, the Department contends, could reveal whether the adjudication of the visa application
in question was straight-forward or more complex: “A small number of records would suggest
that a decision was routine and made by the consular officer alone, while a large number of
records would suggest that a decision was more complex and involved consultation with other
12 Department officials or other Executive Branch components.” Dkt. 15-1 at 14. The Department
argues that describing visa records in a Vaughn index, moreover, could reveal an array of other
information, including “whether interagency consultation was required,” “what kinds of
documents were considered in determining an applicant’s eligibility for a visa,” “details about
which specific Executive Branch components were involved in collecting or providing
information that was used in the visa adjudication process,” “details about the law-enforcement
techniques that were used to collect information relevant to a particular visa adjudication,” or
“information about the factual predicates for particular visa denials, including the relevance of an
applicant’s activities or the applicant’s sponsor’s activities.” Id. at 14–15.
Plaintiff responds that the Department is overblowing the extent of these risks. Plaintiff
contends, for instance, that various factors other than the complexity of a visa denial could
dictate the number of records in the file. Dkt. 16-1 at 16. According to Plaintiff, “older people
or those who have sought various visas over the years presumably have more records on average
than younger people or those who have lodged fewer visa requests.” Id. And the Department
“would surely deny a visa to a drug trafficker based on either a single document evincing a prior
criminal conviction or on a set of 100 documents evincing that same trafficking.” Id. But even
if Plaintiff is correct that information in a Vaughn index describing visa records would be open to
multiple interpretations, that does not necessarily undermine the Department’s concern that the
Vaughn index could give the public clues about the contents of visa files that § 1202 requires the
Department to keep confidential.
The problem is that the Department has not adequately substantiated this concern,
particularly in light of the novelty of the approach the Department urges the Court to endorse and
the D.C. Circuit’s observation that a “no number, no list” response is unlikely to pass muster
13 unless supported by “a particularly persuasive affidavit.” ACLU, 710 F.3d at 433. As Plaintiffs
point out, the Department has revealed the number and nature of visa records in past cases. See,
e.g., Medina-Hincapie, 700 F.2d at 739; Soto v. U.S. Dep’t of State, 118 F. Supp. 3d 355, 360
(D.D.C. 2015); Darnbrough v. U.S. Dep’t of State, 924 F. Supp. 2d 213, 215 (D.D.C. 2013).
And the Department acknowledges that it “has provided document-by-document Vaughn indexes
in other cases dealing with records withheld under § 1202(f).” Dkt. 19 at 13 n.3. The
Department explains, however, that “experience has shown that its prior practice caused the
disclosure of confidential aspects of the visa adjudication process,” and, “[a]s a result, it has
prudently modified its practice to ensure the statutorily mandated confidentiality.” Id. The
Department does not say, however, how frequently such issues arose, or under what
circumstances (or even types of circumstances). Nor does the Department explain whether such
concerns would be present in every case or only in some subset of cases, such that the
Department could still provide a Vaughn index in certain types of visa cases. The Department
also fails to explain why it must take the “no number, no list” approach to all thirteen categories
of visa records. If certain forms appear in every (or almost every) visa file, then acknowledging
the existence of such a form in a particular case would not give away any protected information.
The Court thus concludes that the Department has not demonstrated that a “no number, no list”
response was necessary in this case to avoid disclosing information protected by the INA.
Because the Department has not justified its withholdings, the Court will deny the
Department’s motion for summary judgment. To the extent that the Department can justify its
withholdings in more detailed declarations, it may renew its motion. The Court will also deny
Plaintiff’s cross-motion for summary judgment. In her briefing, Plaintiff argues only that the
Court should require the Department to compile a Vaughn index. See, e.g., Dkt. 22 at 20. Given
14 that Plaintiff does not even argue at this stage that she is entitled to disclosure of the contested
records, it would be premature for the Court to grant her motion for summary judgment.
Before concluding, the Court will briefly address two additional issues—the adequacy of
the Department’s search and of its efforts to segregate exempt from nonexempt material—to give
the parties guidance in renewing their motions for summary judgment. First, although the parties
focus their attention on the propriety of the Department’s withholdings, the Court in reviewing
the record encountered one point of confusion about the adequacy of the Department’s search.
As noted above, Plaintiff sought records in the Department’s CLASS database. Dkt. 15-3 at 2–3
(Stein Decl. ¶ 4). Stein explains that the Department’s “[r]ecords relating to visa applications . . .
are generally maintained in a central electronic database called the Consular Consolidated
Database.” Id. at 5 (Stein Decl. ¶ 11). Stein also states that the Department “maintains the
CLASS system and the Non-Immigrant Visa . . . system.” Id. One might read those two
sentences as suggesting that the CLASS system is a component part of the Consular
Consolidated Database, but Stein’s declaration does not make that connection explicit. In
responding to Plaintiff’s FOIA request, the Department searched in the Consular Consolidated
Database. Id. at 6 (Stein Decl. ¶ 11). If that database includes CLASS, then the search was
likely adequate. But if the Consular Consolidated Database is something separate from CLASS,
then the Department might have looked in the wrong place. In renewing its motion for summary
judgment, the Department should clarify this point.
In contrast, the Court is unpersuaded by Plaintiff’s contention that the Department has
failed to meet its burden regarding segregability. See Dkt. 16-1 at 21–22. The Department must
disclose “[a]ny reasonably segregable portion of a record . . . after deletion of the portions which
are exempt.” 5 U.S.C. § 552(b). Under D.C. Circuit precedent, the Court “must make specific
15 findings of segregability regarding the documents to be withheld” before “approving the
application of a FOIA exemption.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.
Cir. 2007). Here, Weetman explains that the Department “conducted a careful line-by-line
review all of the records related to this FOIA request” and “ensured that any reasonably
segregable, nonexempt information within these records was disclosed and determined that no
further information from withheld or partially withheld responsive documents could be
released.” Dkt. 19-1 at 2 (Weetman Decl. ¶ 6). Plaintiff relies on this Court’s decision in
Pejouhesh, which rejected a similarly phrased declaration as overly conclusory, see 2019 WL
1359292, at *8, to argue that the Department’s “segregability showing amounts to ‘trust us’ in an
affidavit,” Dkt. 22 at 12. The Court concludes, however, that this case is distinguishable from
Pejouhesh. Unlike the Exemption 7 withholdings at issue in that case, the Exemption 3
withholdings here are amenable to categorical consideration. The INA renders confidential all
documents, as a class, that pertain to visa processing, and the statutory provision covers those
records in their entirety, not just specific portions. It is thus difficult to imagine how a section of
one of those exempt records, aside from Plaintiff’s applications themselves, which have already
been provided, could reasonably be segregable.
But because the Department must do more to support its “no number, no list” response
and to support the adequacy of its search, the Court will defer making a final decision with
respect to segregability until the record is complete and the universe of potentially responsive
records is settled. To avoid unnecessary litigation regarding segregability going forward, the
Court encourages the Department to address this question directly with additional specificity at
the next stage of the proceeding.
16 CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Department’s motion for
summary judgment, Dkt. 15, is DENIED, and that Plaintiff’s cross-motion for summary
judgment, Dkt. 16, is also DENIED. It is further ORDERED that the parties shall file a joint
status report on or before September 3, 2021, proposing next steps in this litigation, including a
briefing schedule for renewed motions for summary judgment, if appropriate.
/s/ Randolph D. Moss RANDOLPH D. MOSS
Date: August 5, 2021