APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Aldisert and Weis, Circuit Judges and Re, Chief Judge.*fn*
The question for decision is 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. Appellants are Anselmo DeLaurentiis, an Italian citizen currently residing in Italy, and his wife, Fiorinda, a native-born United States citizen currently residing in Philadelphia. The district court granted summary judgment in favor of the Secretary of State, determining that § 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f), qualifies as an existing statute under exemption 3 of FOIA, 5 U.S.C. § 552(b)(3).
Exemption 3 of the Act provides:
(b) This section does not apply to matters that are --
(3) specifically exempted from disclosure by statute (other than § 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of information to be withheld.
The documents at issue pertain to the issuance or refusal of a visa. Release of these documents is regulated by § 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f):
The records of the Department of State and diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, except that in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such record is needed by the court in the interest of the ends of justice in a case pending before the court.
We affirm the grant of summary judgment in favor of the Secretary of State for the reasons set forth by then District Judge Edward R. Becker. We adopt as our own the following portions of Judge Becker's opinion:*fn1
We believe that § 222(f) of the Immigration and Nationality Act squarely falls under exemption 3(B) of FOIA. We reach this conclusion: (1) from the plain language of § 222(f); (2) from an analysis of the policy basis for the statutes and the statutory amendments which constitute exemption 3(B); and (3) the legislative history of exemption 3(B) itself.
A. The Plain Language and Policy of Exemption 3(B)
We start with the plain language of § 222(f) and conclude that § 222(f) qualifies on its faces as an exempting statute under exemption 3(B). This exemption provides that a statute establishing "particular criteria for witholding " or referring to "particular types of information to be withheld " is an exempting statute under FOIA. While § 222(f) does not "establish particular criteria for withholding, " It does refer "to particular types of information to be withheld. " Section 222(f) provides that "records of the Department of State and diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential. . . . " This category of information is sufficiently delimited to fit within the statutory language.
Exemption 3 resulted from Congress' dissatisfaction with the broad administrative discretion in the withholding of documents under FOIA permitted by the Supreme Court's decision in Administrator, Federal Aviation Administration v. Robertson, 422 U.S. 255, 45 L. Ed. 2d 164, 95 S. Ct. 2140 (1975) [" FAA Administrator "]. In that case, the Court ruled that a statute permitting an administrative agency to withhold information upon a written objection when, in the judgment of the agency, "a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public, " id. 259 n.4, qualified as an exempting statute under FOIA. Congress' efforts to curtail such broad administrative discretion in withholding agency records produced the present exemption 3. See generally American Jewish Cong. v. Kreps, 187 U.S. App. D.C. 413, 574 F.2d 624, 627-28 (D.C. Cir. 1978). Section 222(f) does not authorize the unfettered discretion which Congress found objectionable in FAA Administrator. In that case, the statute permitted withholding of "information contained in any application, report, or document " filed pursuant to the full panoply of laws establishing and governing the federal aviation program or otherwise obtained by the Civil Aeronautics Board or the FAA Administrator. Here, § 222(f) limits the Secretary's withholding authority to only those documents pertaining to the issuance or refusal of entry visas. The potential for widespread administrative discretion over the withholding of a vast category of documents is simply lacking in § 222(f).
We find precedent for our conclusion that § 222(f) qualifies as an exemption 3(B) statute in Irons & Sears v. Dann, 196 U.S. App. D.C. 308, 606 F.2d 1215 (D.C. Cir. 1979), where a similarly formulated statute governing the handling of patent applications was found by the United States Court of Appeals for the District of Columbia to qualify as a 3(B) exempting statute. In Irons & Sears v. Dann, appellants sought access under FOIA to all decisions of the Patent and Trademark Office disposing of requests by would-be patentees for a filing date earlier than the one initially assigned to their applications. The Patent and Trademark Office refused to ...