SARO SPADARO, Plaintiff-Appellant, v. UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF STATE, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees.
No. 19-1157
United States Court of Appeals for the Second Circuit
October 20, 2020
August Term, 2019
(Argued: May 4, 2020 Decided: October 20, 2020)
Before: LOHIER, BIANCO, and PARK, Circuit Judges.
Plaintiff-appellant Saro Spadaro appeals from a judgment of the United States District Court for the Southern District of New York (Sullivan, J.) entered in favor of defendants-appellees United States Customs and Border Protection, the United States Department of State, the Federal Bureau of Investigation, United States Citizenship and Immigration Services, and the United States Department of Justice. Spadaro filed his complaint under the Freedom of Information Act,
ROBERT S. GROBAN, JR., Berry Appleman & Leiden LLP, New York, NY (David J. Clark, Matthew S. Aibel, Epstein Becker & Green, P.C., New York, NY, on the brief), for Plaintiff-Appellant.
STEPHEN CHA-KIM, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.
Plaintiff-appellant Saro Spadaro brought this action under the Freedom of Information Act (“FOIA“),
In a separate summary order filed simultaneously
BACKGROUND
I. Facts
Spadaro, a citizen of Italy who resides on the Dutch Caribbean island of St. Maarten, seeks information regarding the DOS‘s decision to revoke his B-1/B-2 visa, which has prevented him from traveling to the United States. Prior to the revocation, Spadaro frequently traveled to the United States for business and leisure. From about 2000 to March 2006, he entered the country using the Visa Waiver Program, until he was informed that he would need to secure a visa for further visits. Spadaro applied for a visa, and on March 30, 2006, after clearing the required security checks, he was issued a combination B-1/B-2 visitor‘s visa from the DOS through the United States Embassy in Bridgetown, Barbados. Following issuance, Spadaro used the five-year B-1/B-2 visa to travel to the United States on multiple occasions.
On October 22, 2008, Spadaro received notice from the DOS that his visa had been “prudentially revoked.” Joint App‘x at 617, 668. A “prudential revocation” is a mechanism by which the DOS can revoke visas “if an ineligibility or lack of entitlement is suspected, when [a noncitizen] would not meet requirements for admission, or in other situations where warranted.” Foreign Affairs Manual § 403.11. The DOS based its decision on INA § 212(a)(3)(A)(ii),
Spadaro alleges that at a meeting on or around January 29, 2013, two FBI agents admitted to him that there was no evidence to support the revocation. According to Spadaro, the FBI agents revealed that, in the early 2000s, the government had investigated whether Spadaro‘s father, Rosario Spadaro, had committed insurance fraud or money laundering in connection with a damages claim he made after Hurricane Lenny in 1999. Despite the investigation, labeled “Operation Blackbeard, Sicilian Mafia,” Joint App‘x at 679, 690, no charges were filed in the United States against Spadaro or his father, and the case was closed.
Spadaro asserts that, during the meeting, the FBI agents informed him that due to confusion distinguishing him from his father, he was placed on a “watch list” as a result of the FBI investigation. Joint App‘x at 621. The FBI neither confirms nor denies that Spadaro‘s name appears on any watch list. The FBI agents purportedly stated that the problem with his visa could be resolved, and he could get his visa back if he either gave them information on criminal activities or paid a $3 million “civil forfeiture” payment for crimes allegedly
In February 2014, Spadaro met with two Drug Enforcement Administration (“DEA“) agents. According to Spadaro, they similarly told him that they could assist with his visa if he gave them information on criminal activity. Spadaro asserted that he had no information to give, and the DEA subsequently informed him that it could not assist with his visa.
Since his meetings with the FBI and DEA, Spadaro has experienced application and travel delays in foreign countries. Spadaro believes that these disruptions have been caused by the spread of incorrect information about him by U.S. officials and represent an attempt to force him to cooperate with their investigations. For example, on March 18 and 20, 2014, while traveling to and from Panama, Spadaro was stopped and questioned by Panamanian immigration officials before being allowed to enter and exit the country.
Spadaro later encountered issues in Anguilla when trying to obtain a landholding license. Spadaro claims that the only reason that the Anguillan authorities have not approved the license is a letter dated October 21, 2014, in which Jeffrey Stanley, Legal Attaché to the U.S. Embassy in the Bahamas, repeated several of the allegations that the FBI and DEA made against Spadaro to an Inspector in the Royal Anguilla Police Force. In addition, in 2016, while traveling to Montreal, Spadaro was stopped and questioned about his business dealings before being told that he was on a “no go list.” Joint App‘x at 604. He contends that these instances demonstrate that the government is trying to spread misinformation about him in order to “extort his cooperation.” Appellant Br. at 12.
Seeking information that the government had about himself generally and the revocation of his visa specifically, Spadaro submitted FOIA requests to the DOS, USCIS, CBP, the DOJ, and the FBI. In response, Spadaro explains that the government agencies identified 3,200 pages of documents responsive to Spadaro‘s requests, withheld 2,229 pages, and produced 971 of those pages, 774 of which Spadaro describes as “heavily redacted.” Appellant Br. at 12. Specifically, the CBP identified 436 pages of responsive documents, all of which were released with redactions under FOIA Exemptions 6, 7(C), and 7(E). Of the 107 responsive documents identified by the DOS, 39 were released in full, five were withheld in part, and 63 were withheld in full under FOIA Exemptions 3, 5, and 7(E). USCIS identified 34 pages responsive to Spadaro‘s request, of which 26 pages were released in full, six were withheld in part, and two were withheld in full under FOIA Exemptions 7(C) and 7(E). Of the 2,798 pages reviewed by the FBI, 462 were released in full or in part after withholdings were made under FOIA Exemptions 1, 3, 5, 6, 7(C), 7(D), and 7(E).
II. Procedural History
Spadaro filed this lawsuit on January 4, 2016, and the parties each moved for summary judgment in 2017. At oral argument on March 12, 2018, the district court ruled from the bench, partially granting the government‘s motion for summary judgment, and fully denying Spadaro‘s cross-motion, as to Exemptions 1, 3, 5, 6, 7(C), and 7(D). The court also determined that the government had not met its burden in claiming FOIA Exemption 7(E). The next day, March 13, the district court issued an order setting forth its rulings from the oral argument and directing further briefing on the remaining issues.
judgment on Exemption 5, and directing the parties to address the issue of segregability.2
The parties renewed their cross-motions for summary judgment on Exemptions 5 and 7(E), and on March 25, 2019, the district court granted the government‘s motion and denied Spadaro‘s motion. The district court entered judgment on March 27, 2019.
Spadaro timely filed a notice of appeal on April 25, 2019. Spadaro seeks review of multiple decisions by the district court: (1) the March 12, 2018 rulings from the oral argument on the motions for summary judgment; (2) the March 13, 2018 order memorializing the rulings from oral argument; (3) the May 17, 2018 order; (4) the March 25, 2019 order; and (5) the March 27, 2019 entry of judgment. Spadaro first argues that the district court erred by permitting the DOS to withhold and redact documents under FOIA Exemption 3, which he claims relates only to the disclosure of documents pertaining to the issuance of a visa or refusal of a visa
– not the revocation of a visa. Second, he asserts that the government improperly withheld those documents under FOIA Exemption 7(E), which protects law enforcement techniques or procedures. Finally, he claims that the district court erred by granting summary judgment in the government‘s favor after finding that the government properly relied on FOIA Exemption 5 to withhold and redact documents, asserting that the government waived any privilege to matters discussed in a public letter. Spadaro does not appeal the district court‘s decision denying his claims under FOIA Exemptions 1, 6, 7(C), and 7(D).
DISCUSSION
Spadaro appeals the district court‘s order granting summary judgment to the government, which allowed the DOS to withhold and redact certain documents based upon enumerated exemptions to FOIA. We focus here on Spadaro‘s arguments regarding Exemption 3 and address in a separate summary order his arguments regarding Exemption 5. At issue are documents withheld in full or in part by the DOS, as set forth in its Vaughn indices.3 According to the Vaughn indices, the material withheld pursuant to Exemption 3, and specifically INA § 222(f), “pertains
United States.” Joint App‘x at 283; see also Joint App‘x at 284–94, 593–94.
Spadaro claims that the district court erred by permitting the DOS to rely on Exemption 3 because “(a) documents concerning [his] visa revocation do not relate to the issuance or refusal of visas, and therefore are not protected from disclosure by INA § 222(f) (
I. Standard of Review
This Court reviews a district court‘s grant of summary judgment in FOIA litigation de novo. Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009). “The agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure.” Id.
Although FOIA “was enacted to promote honest and open government[,] . . . access to governmental information must be ‘orderly and not so unconstrained as to disrupt the government‘s daily business.‘” Grand Cent. P‘ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir. 1994)). To balance these concerns, the statute permits an agency to withhold certain information pursuant to nine exemptions.
“An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit.” Wilner, 592 F.3d at 73; see also Carney v. U.S. Dep‘t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). “Summary judgment is warranted . . . when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” N.Y. Times v. CIA, 965 F.3d 109, 114 (2d Cir. 2020) (quoting Wilner, 592 F.3d at 73). Affidavits submitted by the government “are accorded a presumption of good faith.” Carney, 19 F.3d at 812 (quotation marks omitted). This presumption “cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Grand Cent. P‘ship, Inc., 166 F.3d at 489 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
II. FOIA Exemption 3
Under FOIA Exemption 3, an agency may withhold material that is “specifically exempted from disclosure by statute . . . if that statute . . . (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”
Section 222(f) of the INA is entitled “Confidential nature of records,” and provides that “[t]he records of the Department
As to the first requirement for application of Exemption 3, we conclude that INA § 222(f) is a qualifying statute because it clearly “refers to particular types of matters to be withheld,”
Although Spadaro concedes that the government has satisfied the first requirement under Exemption 3, he disputes whether the government has also made the requisite showing that the records at issue fall within INA § 222(f)‘s scope. As a threshold matter, he argues that the government cannot invoke INA § 222(f) for withheld documents that were reviewed by the DOS in connection with his visa applications because they were not generated in the course of his applications. Moreover, he asserts that, for those documents that specifically reference visa revocation, INA § 222(f) does not apply because revocation documents do not pertain to “the issuance or refusal of visas.” Finally, he contends that “this Court should direct the DOS to release the [withheld] documents in the interests of justice in this case even if INA § 222(f) otherwise bars their release.” Appellant Br. at 31. We address each argument in turn.
1. Documents Reviewed in Connection with the Visa Applications
Spadaro applied for a visa on four occasions – in March 2006, February 2014, October 2014, and February 2017. As relevant to this appeal, Eric F. Stein of the DOS submitted two declarations: one regarding documents from the DOS, see Joint App‘x at 269-82, and one regarding documents referred to the DOS by the FBI, see Joint App‘x at 583–92. As to the latter declaration, Stein explains that the FBI sent eight documents to the DOS for consultation, and information was ultimately withheld in five of them. In these declarations, Stein sets forth his procedure for processing Spadaro‘s FOIA requests and withholding certain information pursuant to FOIA exemptions. In addition, each declaration from Stein is accompanied by a Vaughn index. Based on the indices, the government invoked Exemption 3 and INA § 222(f) to withhold approximately two dozen records (consisting of 188 pages) in full or in part. It did so, according to its Vaughn index, because “[t]he withheld information pertains directly to the issuance or refusal of a visa to enter the United States.” E.g., Joint App‘x at 283. Specifically, the government asserts that the withheld records were all reviewed in connection
Spadaro claims that the dates of the withheld documents do not correspond to the dates of his applications for visas, and thus cannot be related to such applications. Moreover, he highlights that because some of the documents do not have dates, such documents cannot pertain to the issuance of a visa. Below, the district court found that “[t]he dates attributed to the documents . . . do not purport to indicate when the documents were reviewed in connection with a visa application; they merely identify the dates on which the document[s] were created.” Special App‘x at 22. Thus, the district court concluded, “there is nothing about the dates . . . that undermines the contention that those documents were considered during the adjudication of [Spadaro‘s] later-filed visa application[s].” Special App‘x at 22.
To the extent that Spadaro asserts that a document must be created in connection with the visa application to pertain to the application under INA § 222(f), we find that argument unpersuasive. Although we agree with courts that have cautioned that INA § 222(f) cannot be used “to withhold information that was not gathered, used, nor is being used to determine an actual past or pending visa application,” Darnbrough v. U.S. Dep‘t of State, 924 F. Supp. 2d 213, 218 (D.D.C. 2013) (citing Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law v. U.S. Dep‘t of State, No. 12 Civ. 1874 (GBD), 2012 WL 5177410, at *2 (S.D.N.Y. Oct. 18, 2012)), that is not the situation here. The affidavits and Vaughn indices provide that the documents were reviewed in connection with a visa application and ultimate refusal of a visa. The confidentiality of documents reviewed in connection with the visa application (and potentially also relied upon in the adjudication of that application) is necessary to protect the thought-process of the decisionmakers, and such documents clearly fall within the ambit of INA § 222(f), which refers broadly to protecting documents “pertaining to the issuance or refusal of visas,” rather than only documents submitted by the visa applicant. See Medina-Hincapie, 700 F.2d at 744. The government‘s affidavits addressing this issue are “accorded a presumption of good faith,” Wilner, 592 F.3d at 69 (quotation marks omitted), and Spadaro has not adequately rebutted the claim that the records were reviewed as part of his visa application processes.
Thus, this case is unlike Darnbrough, in which the DOS conceded that the document at issue was not related to any process to obtain a visa or permit, but rather was simply contained in a database. 924 F. Supp. 2d at 218–19; see also Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law, 2012 WL 5177410, at *1 (INA § 222(f) did not permit withholding of document when it was “undisputed that there has never been any actual visa application“). In short, because there were visa applications submitted by Spadaro, and the government affirms, without dispute, that the withheld documents were reviewed for one or more of those applications, see Joint App‘x at 283–94, we conclude that the district court correctly determined that these documents fall within the scope of INA § 222(f) and are protected from disclosure under Exemption 3.
2. Visa Revocation Records
Spadaro also challenges the district court‘s ruling that Exemption 3 applies to two documents referenced in the DOS‘s Vaughn index that are entitled “Visa Revocation Service” and “Revocation
whether documents that relate solely to the revocation of a visa “pertain[] to the issuance or refusal of visas or permits to enter the United States,” and thus fall within the ambit of INA § 222(f). We hold today, as a matter of first impression in this Circuit, that they do.
The government argues that “the term ‘issuance’ of visas encapsulates later actions, such as revocation, that inherently implicate (by revisiting and nullifying) the underlying decision to issue a visa in the first place.” Appellees Br. at 18. The district court below agreed. In doing so, it adopted the reasoning of Soto v. United States Department of State, in which a federal district court in the District of Columbia found that “[i]t is not difficult to see how records that document the revocation of a visa–or that were relied upon in the course of revoking a visa–could ‘pertain[] to the issuance or refusal of [a] visa[].‘” No. CV 14-604, 2016 WL 3390667, at *3 (D.D.C. June 17, 2016) (quoting
within a section entitled “Issuance of Visas.” Id. It therefore concluded that documents pertaining to visa revocation fell within the ambit of
Spadaro, instead, relies on a district court in this Circuit, which held that material relating to visa revocations is not covered by
Although exemptions under FOIA “must be narrowly construed,” Dep‘t of Air Force v. Rose, 425 U.S. 352, 361 (1976), we agree with the analysis in Soto and conclude that the plain language of
In this case,
Applying that broad phrase to the circumstances here, it is clear that the revocation of a visa pertains to the issuance of a visa because they are so closely related — namely, a revocation constitutes a nullification of that issuance. See Soto, 2016 WL 3390667, at *3–4; see also Vizcarra Calderon v. U.S. Dep‘t of Homeland Sec., No. 18-CV-764, 2020 WL 805212, at *3 (D.D.C. Feb. 18, 2020) (relying on Soto to find that a document similarly entitled “Visa Revocation Services” was properly withheld under
Like the court in Soto, we are unpersuaded by the analysis in El Badrawi, which focused on the terms “issuance” and “refusal” and relied upon the canon of expressio unius — namely, the explicit mention of one thing is the exclusion
We similarly disagree with Spadaro‘s reliance, as well as that of the district court in El Badrawi, on later amendments to the INA to glean congressional intent on this issue. Examining a later amendment to the INA, the court in El Badrawi reasoned that Congress:
continued to treat visa revocations separately from issuances and refusals. See Pub. L. 108–458, 118 Stat. 3638. For example, § 5304 of that Act, entitled “Revocation of Visas and Other Travel Documentation,” can be contrasted with § 5302, “Visa Application Requirements.” Id. The fact that the two procedures are addressed in distinct sections of the legislation evidences an intent on the part of the lawmakers that visa revocation be treated as distinct from visa application (i.e., issuance or refusal of visas). Beyond mere titles, however, the legislation made discrete distinctions substantively. See Pub. L. 108–458 § 5304, 118 Stat. 3638, 3736 (changing judicial review for visa revocation, but not for issuance or denial).
583 F. Supp. 2d at 311–12. We must emphasize the Supreme Court‘s “oft-repeated warning that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980) (quotation marks omitted). That hazard is magnified where, as here, the subsequent amendments did not relate to the particular provision at issue and were done for an entirely different purpose. Rather, these amendments were enacted in 2004 as part of the Intelligence Reform and Terrorism Prevention Act, which sought to “reform the intelligence community and the intelligence and intelligence-related activities of the United States [g]overnment.” Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). As the government correctly notes, “the fact that Congress treated revocation and issuance of visas differently for the purposes of reforming the existing revocation and issuance
Finally, in a last-ditch effort, Spadaro attempts to distinguish the way in which his visa was revoked by the DOS and the way in which the revocations occurred in Soto and similar cases that found in the government‘s favor. He asserts that, although the plaintiffs in those cases had their visas revoked abroad under
Our broader interpretation of the statute comports with the view that “[t]he scope of section 222(f) is not limited to information supplied by the visa applicant[;] it includes information revealing the thought-processes of those who rule on the application.” Medina-Hincapie, 700 F.2d at 744. Spadaro fails to offer any convincing reason why Congress would not seek to protect the thought-processes of those ruling on revocations to the same extent as those ruling on issuances or refusals of visas, or would be more concerned with protecting the thought-processes on such matters of overseas consular officials as compared to DOS officials in the United States. Therefore, even if we were to determine that the statute was ambiguous, the purpose of
Accordingly, we conclude that the DOS officials properly invoked
3. Releasing the Records in the Interest of the Ends of Justice
Spadaro alternatively argues that even if
Spadaro has not adequately demonstrated that this Court or any other court requires the particular material, and he cannot rely on this subsection of the INA “to request documents from the Secretary merely for the purpose of turning those documents over to an unsuccessful FOIA applicant.” Soto v. U.S. Dep‘t of State, 118 F. Supp. 3d 355, 371 (D.D.C. 2015). In other words, the function of this narrow exception is to allow the DOS to disclose such documents in pending court proceedings, separate and apart from a FOIA action, where the court certifies its need for such documents. Therefore, the limited circumstances in which a court has relied on this subsection include a request for documents pertaining to a criminal matter, United States v. O‘Keefe, No. 06-CR-0249, 2007 WL 1239204, at *2 n.1 (D.D.C. Apr. 27, 2007) (“There can be no question that in a criminal case regarding the handling of requests within a consulate, consular records are ‘needed by the Court in the interest of the ends of justice’ within the meaning of this statute.“), and a request from the parties in order to allow the district court to ascertain the basis of the defendants’ determination that the plaintiff was inadmissible, Tran v. Rice, No. 06-CV-02697-H, 2007 WL 9776703, at *1 (S.D. Cal. May 1, 2007).
In short, Spadaro has failed to meet his burden of demonstrating that the records are needed by a court “in the interest of the ends of justice,” and the discretionary release of records under
CONCLUSION
In sum, we conclude that the documents at issue are protected from disclosure under