Assadi v. Dep't of State, No. 12-1111, 2014 U.S. Dist. LEXIS 132959 (S.D.N.Y. Sept. 19, 2014) (Stanton, J.)

Assadi v. Dep't of State, No. 12-1111, 2014 U.S. Dist. LEXIS 132959 (S.D.N.Y. Sept. 19, 2014) (Stanton, J.)

Re: Request for records concerning plaintiff and plaintiff's law firm

Disposition: Granting defendant's motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that defendant's "[d]eclaration is sufficiently detailed and shows that DOS searched all sources specified in [plaintiff']s request as well as other DOS records systems likely to contain relevant documents, and that its search methods were reasonably calculated to uncover all responsive records."  Additionally, the court finds that "evidence shows neither bad faith on the part of DOS sufficient to impugn [defendant's] Declaration, nor that the search so far conducted was inadequate."  The court explains that despite not searching certain legal offices at first, "DOS later asked for clarification from [plaintiff] about the request's scope, and when [plaintiff] said that his request included litigation files in cases brought by [plaintiff's law firm], DOS undertook supplemental searches of its legal offices."
   
• Exemption 3:  The court holds that "[t]he documents withheld by DOS qualify for nondisclosure under § 1202(f)."  The court relates that "[t]he Immigration and Nationality Act, 8 U.S.C. § 1202(f), provides in part: '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.'"  The court notes that "[plaintiff] does not contest that § 1202(f) qualifies as a withholding statute," but instead contends that the withheld information was not covered by this statutes.  The court finds that "the withheld documents relate to visa applications or litigation involving visa adjudications, and therefore pertain to the issuance or refusal of visas or permits to enter the United States and are confidential under § 1202(f)."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the documents are predecisional because they were used to assist DOS officers in reaching final decisions on visa applications, policy questions, and litigation cases, and deliberative because they discuss proposed next steps or potential outcomes of those applications, policies, or litigations."  Additionally, the court finds that "DOS's Vaughn entries are also reasonably detailed."  "They describe the author, recipient, date, type and content of each document withheld in whole or in part, and explain why the document falls within an applicable exemption or exemptions."  The court does find that "[plaintiff] is correct that [defendant's] Declaration does not explain how Exemption 5 applies to each withheld document," but "DOS's Vaughn indices and [defendant's] Declaration provide an adequate basis to conclude that DOS's process assured that the withheld documents are exempt from disclosure."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "DOS has shown that it is entitled to the presumption that all reasonably segregable non-exempt material has been disclosed."  The court relates that defendant "declares, 'After conducting a line-by-line review, the Department determined that no further segregation can be made without disclosing exempt information.'"  "The Vaughn entries also state that DOS conducted segregability analysis for each document."  The court also reviewed certain documents and finds that "[n]o reasonably segregable material appears to be in those two documents."
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[a]s previously discussed, [defendant's] Declaration and Vaughn indices submitted by DOS are sufficiently specific and DOS's request for clarification of [plaintiff's] FOIA request does not indicate bad faith."  "Because [plaintiff] has not effectively challenged DOS's assertions by contrary evidence or a showing of agency bad faith, in camera review is unnecessary."