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February 7, 1991


The opinion of the court was delivered by: Skretny, District Judge.



Now before this Court is the defendant's motion ("motion") for dismissal of plaintiff's lawsuit pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1). Because both parties have submitted affidavits beyond the pleadings which this Court has considered in ruling on the motion, pursuant to Fed.R. Civ.P. 12(c) this Court shall treat the motion as one for summary judgment.

This Court has jurisdiction over this lawsuit pursuant to 5 U.S.C. § 552(a)(4)(B).

Jan-Xin Zang ("plaintiff") sued the Federal Bureau of Investigation ("FBI") of the United States Department of Justice pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), alleging that the FBI and United States Department of State (for sake of convenience referred to collectively as "the government") improperly withheld information pertaining to plaintiff which plaintiff requested pursuant to the FOIA.*fn1 Plaintiff seeks the following relief: that this Court conduct an in camera examination of all withheld materials to determine whether the government properly withheld from disclosure all or part of the materials under FOIA, actual damages and attorneys' fees.

The government contends that its submission of Vaughn indices*fn2 satisfies its burden under the FOIA and, therefore, asks this Court to decline an in camera examination and dismiss plaintiff's lawsuit as a matter of law.

In support of its motion, the government submits three Vaughn indices in the form of affidavits with exhibits from: FBI Special Agent Timothy L. Sullivan ("Sullivan"); Acting Deputy Director of Mandatory Review of the Classification/Declassification Center of the U.S. Department of State, Frederick Smith, Jr. ("Smith"); and FBI Special Agent Paul M. Moskal ("Moskal"). The government also submits a chart ("Chart") briefly describing each item of information withheld keyed to the exemption under which the government withheld it and cross-referenced to the relevant portions of the Vaughn indices supporting the claimed exemption. The government further submits a legal memorandum and supplemental memorandum ("government's memo," "government's supp. memo") and a Statement of Material Undisputed Facts ("government's fact statement").

In opposition to the motion, the plaintiff submits a legal memorandum ("plaintiff's memo") and its Affidavit In Opposition with exhibits ("plaintiff's affidavit").

Conclusion: For the reasons set forth below, this Court grants defendant's motion in its entirety.


The following material facts are not in dispute.

Plaintiff is a Chinese national presently in the United States pursuant to a visa. Plaintiff is a graduate student in the Department of Physics at the State University of New York at Buffalo.

By letter dated July 29, 1988, and addressed to the Freedom of Information Officer, Federal Bureau of Investigation, 111 West Huron Street, Buffalo, New York plaintiff requested "all records filed under my name." (plaintiff's affidavit, Exh. 1). By letter dated August 3, 1988, the FBI at Buffalo responded by requesting additional information from plaintiff to assist in processing plaintiff's request. (plaintiff's affidavit, Exh. 2). By letter dated August 8, 1988, plaintiff supplied the FBI the requested additional information. (plaintiff's affidavit, Exh. 3).

By letter dated August 17, 1988, FBI Assistant Special Agent Van Harp notified plaintiff that a search of the government's central records system located six documents responsive to plaintiff's request although only three of the documents originated with the FBI. The FBI referred plaintiff's request to the Department of State, where the other three documents originated, for that agency's independent determination. (plaintiff's affidavit, Exh. 3). The FBI withheld from disclosure the three documents originating with it, totaling four pages, pursuant to four separate statutory exemptions from disclosure contained in the FOIA. (plaintiff's affidavit, Exh. 3). By letter dated August 31, 1988, addressed to the Assistant Attorney General, Office of Legal Policy, plaintiff appealed the FBI's decision. (plaintiff's affidavit, Exh. 4).

By letter dated September 9, 1988, the United States Department of Justice acknowledged receipt of plaintiff's administrative appeal. However, the processing of plaintiff's administrative appeal was delayed due to a backlog of pending FOIA appeals. (Moskal, Exhs. G, I, and K).

On June 26, 1989, the Department of State responded to that portion of plaintiff's request which located three documents originating with it; the Department of State withheld two of the three documents on the grounds that they pertained to the issuance or refusal of a visa pursuant to 8 U.S.C. § 1202(f) and therefore were exempt from disclosure under the FOIA. The State Department released to plaintiff the third document, plaintiff's visa application, with redactions. (government's fact statement, ¶ 7).

On August 23, 1989, the Buffalo office of the FBI declassified portions of the three documents originating with the FBI which the FBI had originally withheld from disclosure to plaintiff. The FBI released these documents to plaintiff with redactions. (government's fact statement, ¶ 8).

On April 6, 1989, plaintiff commenced this lawsuit*fn3 seeking, inter alia, this Court's in camera examination of all withheld materials to determine whether the government properly withheld this information pursuant to the FOIA.


1. Summary Judgment Standards

Fed.R.Civ.P. 56(c) provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden is upon the moving party to demonstrate the absence of a material factual dispute. Fed. R.Civ.P. 56(e). Once that burden is met, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). This Court must draw all reasonable inferences in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). Courts should not be reluctant to grant summary judgment in appropriate cases since "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims," Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), thereby permitting courts to avoid "protracted, expensive and harassing trials." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).

Applying this standard to the present case, the Court must dismiss plaintiff's lawsuit.

2. The FOIA and Its Exemptions

By enacting the FOIA, Congress "sought `to open agency action to the light of public scrutiny' . . . by requiring agencies to adhere to `a general philosophy of full agency disclosure.'" Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 2846, 106 L.Ed.2d 112 (1989) (citations omitted). Therefore, upon public request federal agencies must disclose records and related materials in their possession unless the material falls within one of the FOIA's nine exemptions contained at 5 U.S.C. § 552(b)(1)-(b)(9).

5 U.S.C. § 552(a)(4)(B) provides that a district court review de novo the government's exemption claims and also authorizes district courts to examine records in camera "to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in [§ 552(b)]. . . ."

When withholding requested information, the government bears the burden of demonstrating the applicability of a claimed exemption. See, Lawyers Committee for Human Rights v. ...

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