Kayll v. DHS, No. 22-2830, 2024 WL 81231 (D.D.C. Jan. 8, 2024) (Bates, J.)

Kayll v. DHS, No. 22-2830, 2024 WL 81231 (D.D.C. Jan. 8, 2024) (Bates, J.)

Re:  Request for records concerning determination that plaintiff is “‘inadmissible’” to enter the United States

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Procedural Requirements, “Agency Records”:  The court relates that “[t]he issue at this juncture is whether CBP must produce the record available at the ‘waiver link on CCDI NIV page.’”  “‘CCDI NIV’ refers to the Consolidated Consular Database Non-Immigrant Visa System, a State Department database containing documents relating to visa applications.”  “A State Department consular officer seeking CBP approval for an inadmissibility waiver begins by creating a form in the database’s Admissibility Review Information System.”  “The form includes the applicant’s biographical information and the consular officer’s justification for recommending a waiver.”  “The consular officer then refers the form to CBP’s Admissibility Review Office through the Admissibility Review Information Service.”  “A CBP officer logs into the Consular Consolidated Database and enters his or her ‘approval or denial, and the grounds for doing so’ into the form.”  “CBP claims that this form, which includes the agency’s decision, is not a CBP ‘agency record’ under FOIA but is instead a State Department record.”  “[Plaintiff] has filed a cross-motion for summary judgment claiming that this form is an ‘agency record’ of CBP that must be produced under FOIA.” 
  
  “As a preliminary matter, the Court notes that the ‘agency records’ test is somewhat inapposite here.”  “Because CBP seems to lack actual or constructive possession of the document at issue, the case raises the question whether CBP can fairly be said to have ‘withheld’ a record at all.”  “However, because the parties have briefed this as an ‘agency records’ case, the Court will proceed using the parties’ proffered framework despite its ill-fitting application to the facts of this case.”  “The Court will ultimately conclude that CBP has met its burden of proving that the document at issue is not an ‘agency record’ of CBP."
  
  The court relates that “[t]he parties first dispute whether CBP ‘created’ the document that includes its rationale for denying the inadmissibility waiver request.”  “CBP asserted that the ‘State Department created the record, and CBP contributed to it with input in a few fields’ . . . .”  “[Plaintiff] argues that the declaration does not suffice to carry CBP’s burden to show it did not create the document.”  “She claims that CBP is ‘tr[ying] to downplay [its] role’ as the agency with an independent, statutory duty to adjudicate inadmissibility waivers and ‘transmit that determination to the State Department.’”  “Neither party has pointed the Court to any case law directly addressing the issue of creation-by-contribution.”  “The Court’s own review suggests that disputes as to whether an agency ‘created’ a record have arisen in two largely inapposite circumstances.”  “First, when ‘external entities . . . have “acted on behalf of [the agency],”’ courts look to whether the agency exercised ‘extensive supervision and control’” over the third-party.”  “Second, when records are produced by agency employees in a personal capacity, courts look to the ‘creation, maintenance and use of the documents’ to determine if the records are ‘attribut[able] to the agency.’”  “Neither line of case law directly applies, since CBP’s contribution was made by agency officials in their official capacity.”  “The Court considers this a close question.”  “On the one hand, what CBP ‘contributed’ to the form was the reasoning for its statutorily mandated adjudication.”  “Disclosure of the document would, therefore, ‘open[ ] agency action to the light of public scrutiny’ and help the public generally, and [plaintiff] specifically, learn about the agency’s decision-making.”  “Moreover, CBP’s contribution is a written response composed by agency officials.”  “Were this decision contained in a separate document, CBP would have likely created an agency record.”  “Further, as a general matter, ‘[t]he focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.’”  “At least to the extent that the information CBP contributed can be segregated from the information the State Department contributed, there is support for concluding that CBP created the record here.”  “On the other hand, CBP did not ‘create’ a record in the ordinary sense.”  “Beyond the brief remark in TECS[, CBP’s internal system’], CBP did not draft its own document memorializing the reasons for denying the inadmissibility waiver request.”  “The document at issue here was initially created by the State Department, and it includes sensitive information from the consular officer about why he or she believed a waiver was warranted.”  “CBP input an explanation into that document, but it did not create any separate record of the rationale for its decision.”  “Moreover, CBP’s input is likely closely related to, and perhaps even logically intertwined with, the request and justification of the State Department.”  “The Court is concerned that finding that CBP created the record could have wide-ranging consequences for documents produced as a result of inter-agency cooperation.”  “Indeed, it is difficult to distinguish CBP’s contribution to the record here from the contribution an agency might make by phone or email if it was consulted on another agency’s decision.”  “Wary of these implications, and in light of the parties’ shallow briefing of this issue, the Court will assume without deciding that CBP has created a record and proceed to the issue of control, which is decisive in any event.”
  
  The court then analyzes the “four factors relevant to whether an agency has ‘control’ over a document.”  First, the court finds that “CBP’s submissions show that the agency intended to relinquish control over the disputed record to the State Department.”  “To begin, CBP has chosen to record its decision within a State Department database.”  “CBP does not even make a copy within a CBP system beyond a brief remark ‘not[ing] the granting or denial of a waiver’ and pointing the officer to the Consular Consolidated Database.”  “Indeed, in [plaintiff’s] case, CBP seemingly forgot to make any note of its decision at all until she filed a FOIA request.”  “CBP’s intent to relinquish control is further supported by the agreement it has entered with the State Department, which gives the State Department control over how the document is used in the future.”  “Under this agreement, CBP may not disclose or otherwise disseminate the document.”  “Further, the agreement provides that the State Department’s retention policies determine whether and when the document can be deleted.”  “That CBP retains an ability to access the document and even points its officers to it through TECS does not create a genuine dispute as to whether CBP intended to relinquish control.”  “Where the agency’s intent is apparent, a document’s creator may retain access to, or copies of, records while still demonstrating an intent to relinquish control.”
  
  “The second factor weighs in favor of CBP as well, though less strongly than the first.”  “On the one hand, CBP and DHS officials are authorized to ‘engage in routine use of visa records maintained in the [Consular Consolidated Database] “for uses within (DHS’s) statutory mission, including to process, approve or deny visa petitions and waivers.”’”  “This suggests an ability to continue using the documents and some degree of control.”  “On the other hand, the agency’s declarations clearly indicate that CBP’s ability to use and dispose of the documents is circumscribed.”  “Indeed, CBP officers must obtain the State Department’s consent before ‘disclosing, reproducing, transmitting, or copying for disclosure’ the record.”  “And the State Department ultimately controls the retention policies governing those documents, including the schedule on which they are deleted.”  “CBP’s ability to continue accessing the document is less relevant to control than the State Department’s authority to decide how that document is disclosed or deleted in the future because an agency may remain able to access documents without having control over them.”
  
  “The third factor of the test weighs in favor of [plaintiff], however.”  “Here, the record at issue memorializes the reasons for CBP’s denial of the inadmissibility waiver and was used to transmit that information to the State Department.”  “Even if CBP never again consulted or relied upon the document, it employed the document to communicate its decision and hence to conduct its business.”  “But because [plaintiff] suggests she will seek a waiver again . . . it is more than ‘possibl[e]’ that the agency will read or rely on the record at issue in this case.”
  
  “The final factor in the control analysis – whether the document was integrated into CBP’s record system or files – firmly weighs in favor of the agency.”  “The record [plaintiff] seeks is housed in the Consular Consolidated Database, a system controlled, operated, and primarily populated by data from the State Department.”  “The fact that CBP makes a brief mark in its own TECS system noting its decision and the existence of a corresponding explanation in the State Department system does not ‘integrate’ the document into CBP’s systems.”
  
  “At this stage in the analysis, the Court has assumed that CBP ‘created’ the records [plaintiff] seeks.”  “When it comes to the issue of ‘control,’ the result is not altogether clear:  two of the four factors weigh strongly in favor of the agency, one weighs somewhat in favor of the agency, and one weighs in favor of [plaintiff].”  “Broadly speaking, the agency’s lack of possession points in one direction; the agency’s use points the other way.”  “The D.C. Circuit has observed that ‘where a document is created by one agency and transferred to a second agency, control or possession is the critical analysis’ to determine whether the document is an ‘agency record.’”  “This makes sense:  it would be counterintuitive to say that an agency ‘controls’ a record simply because it uses the document.”  “We would not say that a library patron ‘controls’ a book just because she reads it or cites it in a report.”  “Rather, we would look for evidence that she also owns the book or has the authority to lend it out or rip up the pages.”  “Indeed, the Court is not aware of cases holding that ‘use’ alone can overcome evidence that the agency lacks actual or constructive possession of a document.”  “It is true, as the parties argue, that the D.C. Circuit has sometimes referred to ‘use’ as the decisive factor.”  “But a review of the case law reveals that the ‘use’ factor is ‘decisive,’ . . . only when there is already evidence that the agency possesses or could take possession of the records.”  “Because ‘possession’ or ‘ownership’ do not alone suffice to show control, . . . ‘use’ separates ‘agency records’ from records an agency merely happens to possess.”  “In this case, the undisputed facts demonstrate that CBP lacks possession of the document, and the lack of possession points clearly to a lack of control.”