United States District Court, S.D. New York
OPINION AND ORDER
RONALD L. ELLIS, Magistrate Judge.
On February 23, 2012, Plaintiff John Assadi, Esq. ("Assadi") filed the Complaint in this action against Defendant United States Citizenship and Immigration Services ("CIS"), alleging violations of the Freedom of Information Act, 5 U.S.C. § 552. ("FOIA") and seeking declaratory and injunctive relief. On May 30, 2012, the Parties consented to jurisdiction by the undersigned. Before the Court is Assadi's motion for in camera review, and CIS's cross motion for partial summary judgment. For the following reasons, Assadi's motion for in camera review is DENIED, and CIS's cross motion for partial summary judgment is GRANTED.
On October 11, 2011, Assadi submitted a request for documents under FOIA to the CIS National Records Center. Assadi sought production of documents relating to communications "from and between the National Visa Center, Fraud Prevention Unit, the American Embassies/Consulates in Ankara, Istanbul and Adana, Turkey, the American Embassy in Paris[, ] France, and the American Embassy in Abu Dhabi, United Arab Emirates, relating to John Assadi, John J. Assadi, or Assadi & Milstein, LLP, but excluding any documents or supporting documents filed or submitted by John Assadi." (Compl. at 2.) Assadi temporally limited his request to January 1, 2009, to October 11, 2011. On November 21, 2011, CIS notified Assadi that it was withholding documents pursuant to 5 U.S.C. §§ 552(b)(5), (b)(6), and (b)(7)(C). Assadi appealed the same day and CIS affirmed its decision on January 12, 2012.
On February 23, 2012, Assadi filed the present Complaint alleging that CIS failed to provide responsive records under FOIA, improperly relied on FOIA exemptions, and failed to provide a Vaughn index. On April 2, 2012, CIS filed its Answer. CIS provided a Vaughn index to Assadi on June 8, 2012, and filed it first motion for partial summary judgment on August 3, 2012. In the motion, CIS stated that it had determined on July 23, 2012, to undertake an additional search for responsive documents, and that the search would be completed by August 24, 2012. On August 15, 2012, Assadi filed its response to CIS's motion, and on August 20, 2012, CIS filed its reply. The Court granted CIS's motion for partial summary judgment on January 22, 2013.
On July 11, 2013, the Parties appeared before the Court for a status conference to address CIS's failure to produce the remaining responsive documents to Assadi. At the conference, the Court orally ordered CIS to produce all remaining documents to Assadi by August 23, 2013, and ordered Assadi to file any objections to the production by August 30, 2013. On July 12, 2013, the Court filed a written order embodying its oral order, and further ordered CIS to submit an affidavit by July 26, 2013, detailing the efforts it had made to fulfill its statutory duty to produce responsive documents to Assadi, including an explanation for the delayed production. (Docket No. 19.) CIS timely submitted the affidavit. (Docket No. 22.) On August 21, 2013, CIS produced additional documents to Assadi, along with a preliminary Vaughn index. (Welch Decl. ¶ 4, Ex. 1.) On September 23, 2013, Assadi filed his motion for in camera review. (Docket No. 28.) On October 8 and 24, 2013, CIS produced additional responsive documents, with another Vaughn index addressing the withholdings. (Welch Decl. ¶ 6, Ex. 1). On November 7, 2013, CIS filed its response to Assadi's motion for in camera review, and filed a cross motion for partial summary judgment. (Docket No. 33.) On November 21, 2013, Assadi filed his reply in further support of his motion for in camera review and his response to CIS's motion for partial summary judgment. (Docket No. 36.)
Assadi argues that the Court should conduct in camera review of nine disputed documents because CIS has improperly claimed an exemption for the documents, and because the June 8, 2012 Vaughn index provided by CIS is vague, conclusory, and provides insufficient explanations for the withheld documents. Assadi also argues that in camera review is appropriate because of the small number of documents at issue, the conclusory nature of CIS's affidavits, and because CIS acted in bad faith.
CIS seeks partial summary judgment on the propriety of its assertion that nine documents are privileged and need not be disclosed.
A. Motion for In Camera Review
In camera review in FOIA cases is at the discretion of the trial court. 5 U.S.C. § 552(a)(4)(B). The court should consider conducting in camera review "where the government seeks to exempt entire documents but provides only vague or sweeping claims as to why those documents should be withheld." Associated Press v. U.S. Dep't of Justice, 549 F.3d 62, 67 (2d Cir. 2008). In camera review is only necessary where "the government's affidavits make it effectively impossible for the court to conduct de novo review of the applicability of FOIA exemptions." Id. See Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 75-76 (2d Cir. 2009) ("A court should only consider information ex parte and in camera that the agency is unable to make public if questions remain after the relevant issues have been identified by the agency's public affidavits and have been tested by plaintiffs."). Before ordering in camera review, the district court, may, at its discretion, consider alternative options for eliciting additional detail from the government, including requiring supplemental Vaughn affidavits, permitting further discovery, or offering the government the option of submitting additional Vaughn affidavits for in camera review. Halpern v. F.B.I., 181 F.3d 279, 295 (2d Cir. 1999). In camera review is thus the exception, not the rule. Local 3, Int'l Bhd. Of Elec. Workers, AFL-CIO v. N.L.R.B., 845 F.2d 1177, 1180 (2d Cir. 1988).
In its response to Assadi's motion for in camera review, CIS filed a supplemental Vaughn index. (Welsh Decl. Ex. 3.) Considering the June 8, 2012 Vaughn index and the supplemental Vaughn index together, the Court finds that CIS has provided sufficient detail to support its claims of the applicability of exemptions. See Wilner v. Nat'/ Sec. Agency, 592 F.3d 60, 75 (2d Cir. 2009) (quoting Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009)) (finding that if an agency's statements "contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise... the court should not conduct a more detailed inquiry....'"). Accordingly, the Court finds that in camera review is not required.
Assadi argues that the Court should follow the framework set out by the D.C. Circuit in Allen v. CIA, and consider the following factors in determining whether to conduct in camera review: 1) judicial economy; 2) the conclusory nature of agency affidavits; and 3) bad faith on the part of the agency. 636 F.2d 1287, 1298 (D.C. Cir. 1980), disavowed on other grounds, Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828 (D.C. Cir. 1983) Assadi does not cite any ...