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
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,
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. ...