Case Detail

FOIA Project Annotation: A federal court in Massachusetts has ruled that Daniel Dem, a naturalized U.S. citizen who had been born in Cambodia, may not have access to the marriage certificate from his former marriage to Narong Iv because even though the marriage certificate is contained in Dem's Alien File it is protected by Exemption 6 (invasion of privacy) and may not be disclosed without Iv's authorization. Dem became a naturalized citizen in 1994. When visiting Cambodia in 2006 or 2007, he met and married Iv. When he returned to the U.S., Dem applied for a Petition for Alien Relative to establish his relationship with Iv. He also applied for a Permanent Resident Card and a visa. The U.S. Immigration and Citizenship Service ultimately denied the visa and Dem and Iv fell out of touch. Dem subsequently had a ceremonial marriage in Cambodia to another woman with whom he had a child. His counsel, Thomas Stylianos, informed Dem that his marriage would not be valid in Massachusetts until he obtained a divorce from Iv. To help accomplish that goal, Dem submitted a FOIA request to USCIS for Form I-130, which contained his marriage certificate as an attachment. While Dem may have had access to original documents submitted by himself related to his citizenship under the Privacy Act, since the marriage certificate had been moved to Iv's Alien File in 2009. USCIS interpreted Dem's request as a FOIA request and denied his request under Exemption 6 unless he provided Iv's authorization or proof of death. The court found that Dem had chosen to proceed under FOIA rather than the Privacy Act. Dem argued that the marriage certificate was a public record. However, the court noted that "the issue presented here, however, is a different one, namely, whether the federal government is maintaining this information as a 'record on an individual which can be identified as applying to that individual.' Whether USCIS held these records under Mr. Dem's name or Ms. Iv's name, a FOIA request for these records falls within this category." Balancing the interests in disclosure against Iv's privacy interests, the court noted that "even if Ms. Iv's marriage certificate may be obtained by petitioning the Cambodian government, it does not necessarily follow that Ms. Iv no longer has any expectation of privacy to the open dissemination of the document (even though it may, arguably, lessen her reasonable expectation of privacy)." The court added that "while Ms. Iv's expectation of privacy in the requested documents may be small, and Mr. Dem's need for the documents may be great, FOIA is not the correct mechanism for obtaining the documents."
Issues: Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2020-06-13	1	COMPLAINT Injunctive (FOIA) Relief against All Defendants Filing fee: $ 400, receipt number 0101-8284142 (Fee Status: Filing Fee paid), filed by Thomas, Jr. Stylianos. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form, # 3 Exhibit)(Stylianos, Thomas) (Entered: 06/13/2020)
2020-06-15	2	ELECTRONIC NOTICE of Case Assignment. Judge Indira Talwani assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Finn, Mary) (Entered: 06/15/2020)
2020-06-15	3	Summons Issued as to US Citizenship and Immigration Services. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Kelly, Danielle) (Entered: 06/15/2020)
2020-07-06	4	NOTICE of Appearance by Anita Johnson on behalf of US Citizenship and Immigration Services (Johnson, Anita) (Entered: 07/06/2020)
2020-07-10	5	AFFIDAVIT OF SERVICE Executed by Thomas Stylianos Jr., Daniel Dem. All Defendants. Acknowledgement filed by Thomas Stylianos Jr., Daniel Dem. (Attachments: # 1 Exhibit Service Proof)(Stylianos, Thomas) (Entered: 07/10/2020)
2020-07-17	6	Assented to MOTION for Extension of Time to 8/16/2020 to File Answer partially by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 07/17/2020)
2020-07-20	7	Judge Indira Talwani: ELECTRONIC ORDER granting in part and denying in part Defendant's Motion for Extension of Time 6 . The Defendant requests a 60-day extension of time to respond in part because Defendant "is attempting to locate the files requested and to consider whether, considering they relate to another individual, they are releasable to Plaintiff." The court finds no cause for the requested extension where this inquiry should have occurred prior to the denial of Plaintiff's administrative appeal. As a courtesy, the court extends the Defendant's time to respond to the complaint to July 31, 2020. (Kelly, Danielle) (Entered: 07/20/2020)
2020-08-11	8	MOTION for Extension of Time to File Answer by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 08/11/2020)
2020-08-11	9	ANSWER to Complaint by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 08/11/2020)
2020-08-12	10	ELECTRONIC NOTICE Setting Hearing on Motion 8 MOTION for Extension of Time to File Answer: Motion Hearing set for 8/13/2020 01:45 PM before Judge Indira Talwani. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible. Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html . For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov . (MacDonald, Gail) (Entered: 08/12/2020)
2020-08-13	11	Electronic Clerk's Notes for proceedings held before Judge Indira Talwani: Motion Hearing held on 8/13/2020 re 8 MOTION for Extension of Time to File Answer filed by US Citizenship and Immigration Services. Case called. Court had colloquy with counsel. MOTION for Extension of Time to File Answer 8 granted nunc pro tunc. Def. shall email the clerk and Mr. Stylianos in a week as to whether or not motion to dismiss for lack of subject-matter jurisdiction will be filed. Scheduling conference to be set. (Court Reporter: Robert Paschal at rwp.reporter@gmail.com.)(Attorneys present: Stylianos, Johnson) (MacDonald, Gail) (Entered: 08/17/2020)
2020-08-17	12	NOTICE of Scheduling Conference. Telephonic Scheduling Conference set for 9/9/2020 02:30 PM before Judge Indira Talwani. Counsel are instructed to dial 888-808-6929 and enter Code: 8523158 to be connected to the court's teleconference system.(MacDonald, Gail) (Entered: 08/17/2020)
2020-08-21	13	First MOTION for Summary Judgment by Daniel Dem, Thomas Stylianos Jr.. (Attachments: # REFER TO 15 Undisputed Facts, # REFER TO 14 Memoranda, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Stylianos, Thomas) Modified on 8/24/2020 (Kelly, Danielle). (Entered: 08/21/2020)
2020-08-21	14	MEMORANDUM of Law in Support re 13 First MOTION for Summary Judgment filed by Daniel Dem, Thomas Stylianos Jr. (Kelly, Danielle) (Entered: 08/24/2020)
2020-08-21	15	Statement of Material Facts L.R. 56.1 re 13 First MOTION for Summary Judgment filed by Daniel Dem, Thomas Stylianos Jr. (Kelly, Danielle) (Entered: 08/24/2020)
2020-08-31	16	ANSWER to Complaint by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 08/31/2020)
2020-09-02	17	JOINT STATEMENT re scheduling conference . (Stylianos, Thomas) (Entered: 09/02/2020)
2020-09-07	18	MOTION for Extension of Time to 9/25/2020 to File Response/Reply to Plaintiffs' Motion for Summary Judgment by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 09/07/2020)
2020-09-08	19	Judge Indira Talwani: ELECTRONIC ORDER granting in part and denying in part Defendant's Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment 18 . The Defendant requests a 14-day extension of time to respond to Plaintiffs' Motion for Summary Judgment 13 because "USCIS is in the process of considering whether, under the circumstances, [documents] are releasable to Plaintiffs without the consent of the other individual" under whose name the documents are being held. Def.'s Mot. 1 18 . Defendant contends further that "[t]he additional time requested for USCIS' response is necessary for USCIS counsel and FOIA staff to investigate and reach a considered judgment on the request, at a time when FOIA staff has been overwhelmed with FOIA requests and informs the undersigned that they are unable to provide an earlier response." Id. The request mirrors Defendant's earlier request to extend time to answer the complaint. See Def.'s Mot. 6 ("USCIS is attempting... to consider whether [the records] are releasable to Plaintiff"). The court denied the previous request in part, finding "no cause for the requested extension where this inquiry should have occurred prior to the denial of Plaintiff's administrative appeal." Elec. Order 7 . The same lack of good cause continues here. Defendant also notes that "the extension would provide additional time to resolve the dispute, if possible." Def.'s Mot. 1-2 18 . The parties' Scheduling Conference Memorandum 17 filed just days earlier states the Plaintiffs' settlement demand and that Defendant does not agree to the proposal. Defendant makes no suggestion as to why the likelihood of settlement has changed in the days since that Scheduling Conference Memorandum was filed. The court finds no cause for the extension. But as a courtesy to Defendant's counsel, the court extends Defendant's time to respond to Plaintiffs' Motion for Summary Judgment 13 to September 18, 2020. The court does not anticipate granting further extensions of this deadline. (Kelly, Danielle) (Entered: 09/08/2020)
2020-09-09	20	Electronic Clerk's Notes for proceedings held before Judge Indira Talwani: Scheduling Conference held on 9/9/2020. Case called. Court had colloquy with counsel. There will be no fact discovery. Opp. to Summary Judgment due 9/18/2020; either cross motion will be filed or notice that the issues are partially resolved with a proposed schedule for resolving any remaining fee issues. (Court Reporter: Robert Paschal at rwp.reporter@gmail.com.)(Attorneys present: Thomas Stylianos Jr., Anita Johnson) (MacDonald, Gail) (Entered: 09/14/2020)
2020-09-18	21	MOTION for Summary Judgment by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 09/18/2020)
2020-09-18	22	MEMORANDUM in Support re 21 MOTION for Summary Judgment and In Opposition to Plaintiffs' Motion for Summary Judgment filed by US Citizenship and Immigration Services. (Attachments: # 1 Affidavit, # 2 Exhibit)(Johnson, Anita) (Entered: 09/18/2020)
2020-09-23	23	STATEMENT of facts re 21 MOTION for Summary Judgment . (Johnson, Anita) (Entered: 09/23/2020)
2020-09-29	24	MEMORANDUM in Opposition re 21 MOTION for Summary Judgment by Defendants filed by Daniel Dem, Thomas Stylianos Jr.. (Attachments: # 1 Affidavit Affidavit of Record Subject, # 2 Affidavit Declaration of CBA member)(Stylianos, Thomas) (Entered: 09/29/2020)
2020-10-11	25	MOTION for Extension of Time to 10/23/2020 to File Response/Reply by US Citizenship and Immigration Services.(Johnson, Anita) (Entered: 10/11/2020)
2020-10-13	26	Judge Indira Talwani: ELECTRONIC ORDER entered granting 25 Motion for Extension of Time to File Response/Reply. Replies due by 10/23/2020. The court does not anticipate granting further extensions of this deadline. (Kelly, Danielle) (Entered: 10/13/2020)
2020-10-21	27	REPLY to Response to 21 MOTION for Summary Judgment filed by US Citizenship and Immigration Services. (Johnson, Anita) (Entered: 10/21/2020)
2020-11-16	28	NOTICE of Appearance by Michael P. Sady on behalf of US Citizenship and Immigration Services (Sady, Michael) (Entered: 11/16/2020)
2020-11-16	29	NOTICE of Withdrawal of Appearance by Anita Johnson (Johnson, Anita) (Entered: 11/16/2020)
2020-12-15	30	Judge Indira Talwani: Electronic Order: Before the court are Defendant United States Citizenship and Immigration Service's (USCIS) and Plaintiffs Thomas Stylianos, Jr. and Daniel Dem's Motions for Summary Judgment 21 , 13 . At issue in the summary judgment motions is whether copies of certain documents should be produced to Mr. Dem under the Freedom of Information Act (FOIA). Defendant USCIS argues that the documents, which are located in Mr. Dem's wife's USCIS file, were properly held under Exemption 6 to FOIA, which permits the government, when responding to a FOIA request, to withhold information about individuals when the disclosure would constitute a clearly unwarranted invasion of personal privacy. Plaintiffs argue that Exemption 6 does not apply here where the records concern Mr. Dem and were prepared and submitted to USCIS by him. Although the parties are litigating the action under FOIA, Mr. Dem's initial application to USCIS was made on USCIS Form G-639, which may be used to obtain records under both FOIA and the Privacy Act ("PA"). See Form Instructions, accessed at https://www.uscis.gov/sites/default/files/document/forms/g-639instr.pdf . (Dec. 14, 2020). As USCIS explains in the instructions for the form, the Privacy Act "allows U.S. citizens or lawful permanent residents to: 1. Request access to information pertaining to themselves in Federal agency records; and 2. Correct or amend their records." Here, the initial application identified Mr. Dem as both the person on whose behalf the request has been made and as the subject of the requested records. See Def.'s Ex. A (submitted form G-639) [22-2]. This suggests that the Privacy Act, and not FOIA, may be the more appropriate framework for considering whether Mr. Dem is entitled by law to the requested records. However, for reasons that are not apparent from the record submitted to the court and although USCIS seems to have recognized Plaintiffs' request as made under both statutes, see Def.'s Ex. C (March 2, 2020 letter) [22-2] (identifying the request in correspondence as a "Freedom of Information Act/Privacy Act (FOIA/PA) request" for Daniel Dem regarding his marriage certificate and the first page of his Petition for Alien Relative (Form I-130)); Def.'s Ex. E (June 3, 2020 letter) (same), USCIS treated the request as one made under FOIA only; USCIS referenced rights to appeal under FOIA only, directed Dem's counsel to mark the appeal sent to the USCIS FOIA/PA Appeals Office as a "Freedom of Information Act Appeal," and finally denied the request solely on the basis that the records were exempt from disclosure under FOIA without any discussion of the Privacy Act. See Def.'s Ex. C (March 2, 2020 letter) [22-2]; Def.'s Ex. E (June 3, 2020 letter); see also Eggleston Aff. Paragraph 8 [22-1] (now asserting that the original request was "a FOIA request"). To resolve or clarify this issue, the court directs counsel to confer and determine: (1) whether the issue should have been addressed by USCIS under the Privacy Act; (2) if so, whether the court should remand the matter, consider the Privacy Act request in the first instance, or allow counsel additional time to try to resolve the matter as a Privacy Act request; and (3) if not, whether counsel jointly agree that the Privacy Act is not applicable to Mr. Dem's records request. By December 23, 2020, counsel shall file a joint statement responding to the court's inquiry and, if they are not in agreement on how to proceed, shall include a proposed briefing schedule to address the court's questions. (Kelly, Danielle) (Entered: 12/15/2020)
2020-12-23	31	JOINT STATEMENT of counsel . (Sady, Michael) (Entered: 12/23/2020)
2021-01-28	32	Judge Indira Talwani: ORDER entered. Memorandum and Order DENYING Plaintiffs' Motion for Summary Judgment 13 and GRANTING Defendant's Motion for Summary Judgment 21 . Please see attached. (Kelly, Danielle) (Entered: 01/28/2021)
2021-01-29	33	Judge Indira Talwani: ORDER entered. JUDGMENT. Please see attached. (Kelly, Danielle) (Entered: 01/29/2021)
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