Zynovieva v. US Department of State

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

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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

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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
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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

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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)]

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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

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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

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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.

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 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,

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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.

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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).

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 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

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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

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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

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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.

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 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

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