Friday, February 1, 2013
Re: First party request for records Disposition: Dismissing action as to individual defendants; denying defendants' motion for reconsideration with respect to the applicability of Section 222(f) of the Immigration and Nationality Act to records concerning the revocation of visas; granting defendants' motion for supplemental motion for summary judgment with regard to material withheld under Exemptions 7(A) and 7(E)
- Proper Party Defendant: The court dismisses the claims against the individual defendants. The court notes that "[the] United States Department of State is the only proper defendant in this action and the individual defendants" are dismissed.
- Motion for Reconsideration: The court denies defendant's request for reconsideration of its prior determination that § 222(f) of the Immigration and Nationality Act (INA) does not apply to records concerning the revocation of visas. It notes that "[t]o the extent that the defendants have documents that do not pertain to the revocation of the plaintiff's visa but relate to either the issuance or refusal of visas, those documents are exempt from disclosure under the prior Order." However, with respect to documents that pertain to the revocation of visas, the court refuses to consider the additional case law support offered by defendant. It notes that the case offered "is not an intervening change in controlling law and could have been cited by the defendants in support of their prior summary judgment motion. Moreover, the defendants have not shown the availability of new evidence or the need to correct clear error or manifest injustice."
- Supplemental Assertion of Exemptions: The court finds that defendants have not waived their right to assert exemptions raised for the first time in the supplemental motion for summary judgment. It opines that "[h]ere, there are compelling reasons to consider the arguments raised for the first time. . . . Due to an error, the Department of State failed to contact the [DEA] regarding the applicability of other exemptions to the documents sought by the plaintiff." Noting that some of the documents contain "highly sensitive information pertaining to on-going criminal investigations, including information pertaining to individuals other than [the] plaintiff," the court finds that "disclosure of these documents could pose a risk to the confidential source and the named third party," and considers the additional exemptions.
- Exemption 7(A): The court finds that documents pertaining to ongoing DEA investigations were properly withheld under Exemption 7(A). DEA's declarant explained that the "investigative files that provided the basis for the criminal investigative information contained in the responsive documents remain open" and that release of the information would allow "the individuals and/or entities, who are of investigative interest to [the] DEA . . .[to] use the information to develop alibis, create fictitious defenses, or intimidate, harass, or harm potential witnesses." Finding that DEA has identified an open investigation and articulated the harm from the release of the files, the court finds that various documents were properly withheld.
- Exemption 7(E): The court also finds without discussion that Exemption 7(E) applies "to prevent disclosure" of some of the documents.
Motion for Reconsideration
Proper Party Defendant
Supplemental Assertion of Exemptions
Updated August 6, 2014