The opinion of the court was delivered by: BECKER
This case presents the question whether the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1976), exempts from its general mandate of disclosure certain United States Department of State documents pertaining to the denial of an immigrant visa request.
Plaintiffs are Dr. Anselmo De Laurentiis, an Italian citizen currently residing in Italy, and his wife, Fiorinda, a native-born United States citizen currently residing in Philadelphia. Defendant is the Secretary of State, Alexander M. Haig, Jr. The case came before us on cross motions for summary judgment. On October 30, 1981, we entered an order denying plaintiffs' motion and granting that of defendant, with the notation that a memorandum setting forth our reasons would follow. This is that memorandum, which commences with a recitation of the undisputed background facts.
Sometime prior to August 1979 Dr. De Laurentiis applied for an immigration visa in order to join his wife in this country. That application was denied. In August 1979, believing that they could obtain information pertaining to Dr. De Laurentiis' visa denial, plaintiffs, acting through counsel, sought access to certain immigration and visa files held by the United States Consulate General in Naples, Italy. Plaintiffs were informed that these files had been transferred to the Department of State in Washington, D.C., and plaintiffs accordingly pursued their request there. On December 7, 1979, the Visa Services Director of the Department of State informed them that the desired documents would not be produced because they were exempt from disclosure under FOIA § 552(b)(1) ("exemption 1").
The only other information furnished to plaintiffs was that Dr. De Laurentiis had been found ineligible for an immigration visa because he was believed to be "actively engaged as a director of a Communist affiliated organization in Italy." See 8 U.S.C. § 1182(a)(28) (C) (1976) (aliens who are members of or affiliated with the Communist Party are ineligible to receive visas).
I am writing to request certain records relating to Anselmo De Laurentiis who had applied to the United States Consul at Naples, Italy to immigrate to the United States on a petition of his wife, a United States citizen. Mrs. De Laurentiis is a United States citizen and would have wanted her husband to immigrate to the United States so that the couple can reside in the United States, except for information contained in the files. Prior and formal requests had been unavailing ... Accordingly, I am writing to inquire as to the information relating to the allegation that Anselmo De Laurentiis was or is inadmissible to the United States.
On June 30, the Deputy Assistant for Visa Services notified plaintiffs that their FOIA request had been denied on the ground that the requested documents were exempt from release under the FOIA. Some documents were withheld under exemption 1; others were withheld under § 552(b)(3) ("exemption 3").
At this time the State Department released seven documents pertaining to Dr. De Laurentiis' visa application. The documents released, however, were nothing more than copies of plaintiffs' counsel's correspondence with State Department officials.
Plaintiffs promptly appealed the denial of their FOIA request to the Appeals Review Panel of the Department of State. Plaintiffs received no meaningful response from the Appeals Review Panel until June 11, 1981, almost a year later, when they were advised that their appeal had been denied. The Appeals Review Panel informed plaintiffs that ten of the documents pertaining to Dr. De Laurentiis' visa application were being withheld pursuant to exemption 3, and that four documents were being withheld pursuant to 5 U.S.C. § 552(b)(5).
Upon further review, the government has determined that only eight documents merit withholding, all of them under exemption 3, and that three of the eight documents also merit withholding under exemption 1.
The government no longer asserts an exemption under 5 U.S.C. § 552(b)(5).
Plaintiffs filed the present action in February 1981, prior to their receiving notice of the Appeals Review Panel's decision. On April 7, 1981, plaintiffs moved to compel the preparation of a "Vaughn index". The Vaughn index, first developed in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), is an itemized, indexed inventory of the documents that the government agency contends are exempt from disclosure. A detailed statement justifying the agency's refusal to release a particular document is supposed to accompany each entry. We granted the motion for a Vaughn index on April 21, 1981. The government complied with that order by filing an affidavit by Robert W. Maule, Deputy Assistant Secretary of State for Visa Services.
Plaintiffs were dissatisfied with this submission, claiming that it lacked the specificity required of a Vaughn index. They thereupon moved for further discovery to enable them to challenge the Government's classification and the veracity of Mr. Maule's affidavit.
The government opposed this motion, insisting that the requested discovery was unnecessary in light of Mr. Maule's original affidavit and that, if granted, the discovery would reveal the very information it sought to withhold under the FOIA exemptions. Defendant subsequently filed a second affidavit by Mr. Maule which partially satisfied the discovery request. We then held the motion for further discovery in abeyance pending a hearing on the cross motions for summary judgment.
There being no genuine issue of material fact, we will proceed to rule on the summary judgment motions.
The Government's contention that all the withheld documents are exempt under exemption 3 and, alternatively, that three of the documents were properly withheld under exemption 1, is disputed by plaintiffs who submit that the documents were improperly withheld and that we must order their disclosure.
Our task is to determine whether the Government has carried its burden of proving that withholding was proper. FOIA creates a presumption in favor of disclosure. Ferri v. Bell, 645 F.2d 1213 (3d Cir. 1981). We must make a de novo determination of the withholding and the defendant must bear the burden of proving that the statutory exemption is applicable. 5 U.S.C. § 552(a)(4)(B) (1976). This mandate precludes us from giving any special deference to the State Department's findings, Ferri, 645 F.2d at 1221, especially where, as here, the issue ...