                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

 JUDICIAL WATCH, INC.                         )
                                              )
                      Plaintiff,              )
                                              )
               v.                             ) Civil Case No. 08-1011 (RJL)
                                              )
 U.S. DEPARTMENT OF STATE                     )
                                              )
                      Defendant.              )
                                              )~
                              MEMORANDUM OPINION
                              (September  -3
                                         2009) [# 10]

       The plaintiff, Judicial Watch, has sued the U.S. Department of State (the

"government" or "State Department") for failing to disclose information pursuant to a

Freedom of Information Act ("FOIA") request. The State Department has filed a Motion

for Summary Judgment, asserting the information has been properly withheld under

exemptions to FOIA. For the following reasons, I agree and GRANT the State

Department's summary judgment motion.

I.    Background

      In April 2008, Judicial Watch sent a FOIA request, seeking information relating to

a Mexican drug smuggler who was shot in an incident involving two U.S. Border Patrol

Agents and relating to the agents' prosecution. (Compl.   ~   5.) Specifically, Judicial

Watch sought: communications regarding the drug smuggler between the Department of

State and the Government of Mexico, between the Department of State and the
Department of Justice, and between the Department of State and the Department of

Homeland Security; records of the Diplomatic Security Service regarding the two agents'

prosecution, and information regarding the participation of Department of State personnel

in facilitating the drug smuggler's later, lawful entry into the United States for the

purposes of receiving medical treatment, meeting with federal prosecutors regarding his

immunity, and testifying in the agents' trial. CPl.'s Opp'n to Mot. for Summ. 1. [Dkt. #13]

at 3-4; Compl. ,-r 5.)1 Judicial Watch believes the information it seeks may answer

lIn full, Judicial Watch's FOIA request sought:

       a. Records detailing all contacts and communications between the
       Department of State (DOS) and any/all officers, agencies and/or
       representatives of the Government of Mexico concerning Osbaldo Aldrete-
       Davila, a Mexican national who testified in the prosecution of U.S. Border
       Patrol Agents Ramos and Compean over a shooting incident in Texas on
       February 17,2005.

       b. Records detailing all contacts and communications between DOS and the
       U.S. Department of Justice, to include but limited to the Office of U.S.
       Attorney Johnny Sutton ofthe Western District of Texas, concerning Osbaldo
       Aldrete-Davila, a Mexican national who testified in the prosecution of U.S.
       Border Patrol Agents Ramos and Compean over a shooting incident in Texas
       on February 17,2005.

       c. Records detailing all contacts and communications between DOS and the
       U.S. Department of Homeland Security (DHS), to include but not limited to
       subordinate DHS agencies, offices and components, concerning Osbaldo-
       Aldrete Davila, a Mexican national who testified in the prosecution of U.S.
       Border Patrol Agents Ramos and Compean over a shooting in Texas on
       February 17,2005.

       d. Any and all records ofthe Diplomatic Security Service (DSS) regarding
       U.S. Border Patrol Agents Ramos and Compean and a shooting incident in
       Texas on February 17, 2005, to include but not limited to DSS activities
       detailed in a November 21,2006 DHS Office of Inspector General Report.



                                                  2
questions regarding the prosecution, the involvement of the Mexican government, and the

drug smuggler'S receipt ofprosecutorial immunity. (PI.'s Opp'n to Mot. for Summ. J. at

2.) While the government was required to respond to the FOIA request by June 3, 2008,

it had not responded as of June 12, when Judicial Watch filed this suit to compel

production of the documents. (CompI.,-r 8-9.)

       In September 2008, the State Department produced forty-two documents in full

and portions of seventeen additional documents. (Def.'s Mot. for Summ. J. [Dkt. #10] at

2-3; Decl. of Margaret P. Grafeld ("Grafeld Decl.") [Dkt. 10-2],-r,-r 6-lO.)2 It withheld

five documents, totaling ten pages, related to the individuals' entry into the United States.

(Grafeld Dec. ,-r 19.) These documents were retrieved from a database used to detennine

whether the individuals are eligible for visas ("the visa database documents,,). 3 (Jd.) The

government withheld these documents on the basis that they fell within a FOIA

exemption that allows for withholding if disclosure is prohibited by law. (Jd.)

Specifically, the government argues that the Immigration and Naturalization Act prohibits


       e. The participation of DOS personnel in coordinating, facilitating, and/or
       approving the lawful entry(ies) of Osbaldo Aldrete-Davila into the United
       States. Mr. Aldrete-Davila reportedly entered the United States lawfully to
       obtain medical treatment, meet with federal prosecutors, and to testify in
       court in EI Paso, TX.

(Pl.'s Opp'n to Mot. for Summ. J. at 3--4.)

2The government also disclosed an additional document on September 9, 2008, after review by
the Department of Homeland Security. (Grafeld Decl. ,-r 10.)

3"Visa database documents" refers to documents VOOI through V005 in the Grafeld Declaration.


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disclosure of the visa database documents. (Jd.,-r 17-19 (citing 8 U.S.C. § 1202(f) and 5

u.S.C. § 552(b)(3)).)

       Additionally, the State Department withheld two pages prepared by a Bureau of

Diplomatic Security Special Agent on July 27, 2007, as part of the internal preparation for

a State Department official's testimony relating to the shooting incident before a

congressional panel ("congressional hearing notes,,).4 (Grafeld Decl. ,-r,-r 28-29.)

Ultimately, the official did not disclose the information in the withheld portions of the

congressional hearing notes. (Jd.,-r 29.) Thus, the State Department concluded that the

documents were exempt from disclosure pursuant to the deliberative process privilege

FOIA exemption. (Jd.,-r 28-29); 5 U.S.C. § 552(b)(5).

                                  LEGAL STANDARD

       "When assessing a motion for summary judgment under FOIA, the Court shall

determine the matter de novo." Judicial Watch, Inc. v. Dep 't of Homeland Sec., 598 F.

Supp. 2d 93,95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). De novo review of an

agency decision "requires the Court to 'ascertain whether the agency has sustained its

burden of demonstrating that the documents requested ... are exempt from disclosure

under the FOIA.' " Assassination Archives & Research Ctr. v. Cent. Intelligence Agency,

334 F.3d 55,57 (D.C.Cir.2003) (quoting Summers v. Dep't ofJustice, 140 F.3d 1077,



4"Congressional hearing notes" refers to documents DS002, L013, and L014 in the Grafeld
Declaration, all of which contain the same information. (Grafeld Dec1. ~~ 31-34.)

                                              4
1080 (D.C.Cir.1998) (internal quotations omitted)). Summary judgment is proper when

"the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter oflaw." Fed.R.Civ.P. 56(c). In rendering its decision, a court will

draw "all justifiable inferences" in the non-movant's favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

                                           ANALYSIS

       FOIA embraces a general philosophy of full disclosure of Government records,

unless information is specifically exempted by the Act itself. Oglesby v. Dep't ofArmy,

79 F.3d 1172, 1176 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d 820,823 (D.C. Cir.

1973); Judicial Watch, Inc., 598 F. Supp. 2d at 95. Exemptions from disclosure "must be

construed narrowly, in such a way as to provide the maximum access consonant with the

overall purpose of the Act." Vaughn, 484 F.2d at 823.

I.     The Visa Database Documents.

       The State Department has withheld the visa database documents pursuant to

Exemption (b)(3), (Grafeld Decl.    ~   19), which allows withholding if another statute

requires the documents to be withheld, and does so "in such a manner as to leave no

discretion on the issue," 5 U.S.C. § 552(b)(3)(A).5 In determining whether the

5S ome of the visa database documents contain information not related to the drug smuggler, but
related to individuals who have similar names. The government claims these documents are
exempt under from disclosure under Exemption (b)(6), which permits withholding of "personnel
and medical files and similar files the disclosure of which would constitute a clearly unwarranted


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government properly invoked this exemption, courts should "not closely scrutinize" the

withheld documents' contents but rather determine only (1) "whether there is a relevant

statute," and (2) "whether the document falls within that statute." Perry-Torres v. Us.

Dep 't of State, 404 F. Supp. 2d 140, 143 (2005) (internal quotation and alternations

omitted).

       First, the relevant statute here is the Immigration and Naturalization Act, which

prohibits the government from disclosing Department of State records that "pertain[] to

the issuance or refusal of visas or permits to enter the United States." 8 U.S.C. § 1202(t).

The statute prohibits disclosure "not only of the information supplied by the visa

applicant, but also any information revealing the thought processes of those who rule on

the application." Perry-Torres, 404 F. Supp. 2d at 143 (internal quotation omitted).

        Second, the withheld information falls within the statute, as it was retrieved from a

database used to determine visa eligibility and thus "pertain [s] to the issuance or refusal

of visas." 8 U.S.C. § 1202(t). Indeed, Judicial Watch itself stated it "is only interested in

the [visa database] documents to the extent that they provide information about how [the

drug smuggler] himself obtained a visa or visas for entry into the United States," (Pl.'s

Opp'n to Mot. for Summ. 1. at 8-9), which is exactly the type of information of which the

statute prohibits disclosure, see 8 U.S.C. § l202(t).

invasion of personal privacy." 5 U.S.C. § 552(b)(6); Us. Dep't ofJustice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 755 (1989). However, because Judicial Watch conceded
it is not interested in the information the government is withholding under this Exemption, (PI.' s
Opp'n to Mot. for Summ. J. at 8-9), the Court will not address its applicability.

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       Judicial Watch, not surprisingly, argues that the government needs to provide

additional information about these documents to justify withholding. (PI. 's Opp'n to Mot.

for Summ. J. at 7-8 (citing Wiener v. FBI, 943 F.2d 972,892 (9th Cir. 1991».) I

disagree. The State Department not only described the general contents and purpose of

the visa database, but it also described the documents individually. (See Grafeld Decl. ~~

19 (describing the nature and purpose of the visa database), 35-41 (explaining the

contents of each document).) Accordingly, sufficient information has been provided to

determine that the statute prohibits the documents' disclosure.

       Finally, the Court also finds the State Department properly considered whether

portions of the documents are non-exempt and could be disclosed. See Mead Data

Central, Inc. v. Us. Dep't ofAir Force, 566 F.2d 242,259-60 (D.C. Cir. 1977). The

government, of course, has an obligation to reasonably segregate and disclose all non-

exempt material, unless the material is "inextricably intertwined with exempt portions."

Id. at 260. The State Department complied with its obligations here, having found that

the documents may not be segregated and released because the records all "pertain in

their entirety to visa issuance and refusal." (Grafeld Decl. ~ 41.) As a result, the entire

contents of the five visa database documents are exempt from disclosure.




                                              7
II.    The Congressional Hearing Notes.

       Next, the State Department withheld notes taken in preparation for a congressional

hearing on the basis that the notes are covered by the deliberative process privilege and

thus Exemption (b)(5). I agree. 5 U.S.C. § 552(b)(5); (Grafeld Decl.,-r,-r 29,31,33,34).6

       The deliberative process privilege protects "any documents that reveal an agency's

deliberative process in reaching policy decisions," Judicial Watch, Inc. v. Us. Postal

Serv., 297 F. Supp. 2d 252,258 (D.D.C. 2004), and notes taken by government officials,

such as the notes at issue here, are often made as part of the agency's internal

decisionmaking process, Baker & Hostetler LLP v. Us. Dep 't of Commerce, 473 F.3d

312,321 (D.C. Cir. 2006). As our Court of Appeals has pointed out, notes tend to be

"selective and deliberative," and disclosing them would "hinder government officials

from debating issues internally, deter them from giving candid advice, and lower the

overall quality of the government decisionmaking process." Id. at 321; see also Judicial

6Alternatively, the State Department contends that the congressional hearing notes are properly
withheld under Exemption (b)(7)(E), (Grafeld Decl. ~~ 26-27, 29), which permits the
withholding of "records or information compiled for law enforcement purposes," to the extent
that such information "would disclose techniques and procedures for law enforcement
investigations or prosecutions," 5 U.S.C. § 552(b)(7)(E). As the government explains, the
congressional hearing notes regard investigations of "criminal wrongdoing and administrative
misconduct" by government employees. If the information were disclosed, the targeted
employees would be able to "ascertain [the government's] interest" in and "thwart or interfere
with" the internal investigation. (Grafeld Decl. ~ 29.) Although Judicial Watch seeks from the
government greater detail regarding the applicability of this exemption, requiring greater
specificity would necessarily undermine the investigation. Mayer Brown LLP v. IRS, 562 F .3d
1190, 1193 (D.C. Cir. 2009) (explaining the low threshold of establishing that information would
"risk circumvention of the law" (quoting 5 U.S.C. § 522(b)(7)(E))). Consequently, the
government has properly invoked Exemption (b)(7)(E) in withholding the congressional hearing
notes.


                                               8
Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995). Although the hann of releasing

the notes may be self-evident, agencies must nevertheless "provide a relatively detailed

justification, specifically identifying the reasons why" the exemption applies to "the

particular part of a withheld document." Mead Data Central, Inc., 566 F .2d at 251.

       While Judicial Watch contends that the government has failed to "demonstrate any

specific hann" that would result if the congressional hearing notes were released, it need

not do so. (Pl.'s Opp'n to Mot. for Summ. J at 15.) The State Department has not only

provided sufficiently detailed infonnation about the documents and its reason for

withholding certain portions of the seven page document, (Grafeld Dec!.         ~   28-29), but

also explained that "release of this infonnation would reveal pre-decisional, deliberative

processes and thoughts of the individuals who participated and assisted in the search for

evidentiary material in this investigation," (id.   ~   29). Additionally, "the withheld

infonnation reflects internal strategies and communications among agencies who were

participating and assisting in the search for evidence in this investigation and prior to the

completion of that search." (Id.) Based on this sufficiently detailed explanation, the

Court finds the deliberative process exemption applies. See Mead Data Central, Inc., 566

F.2d at 251.

       Finally, the State Department complied with its obligations to consider the

segregability of its congressional hearing preparation notes. It released portions of its

notes, and it explicitly described the number and size of any withheld portions. It was



                                               9
specific as to the title, printout date, and record of each document, (Grafeld Dec!. ,-r 29),

indicating that the government conducted individualized review of these documents line-

by-line. In short, the State Department did its job properly.

                                      CONCLUSION

       F or these reasons, the Court finds the government has properly withheld

information pursuant to FOIA exemptions, and the Court will GRANT the government's

summary judgment motion. An order consistent with the foregoing accompanies this

memorandum opinion.




                                                    RICHARDJ.          N
                                                    United States District Judge




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