Patrick Taurel, Legal Fellow at the American...
Freedom of Information Act
ARCHIVED ISSUE PAGE (LAST UPDATED JUNE 2012)
The Freedom of Information Act (FOIA) provides that "any person" may request agency documents, see 5 U.S.C. § 552(a)(3), and agencies may only withhold information from a FOIA requester under certain exceptions outlined in 5 U.S.C. § 552(b)(1)-(9). These exceptions are to be narrowly construed, and the burden is on the agency to show why non-compliance with a FOIA request clearly falls under one of these exceptions. 5 U.S.C. § 552(a)(4)(B). FOIA also requires that an agency determine whether it will comply with an initial FOIA request within 20 days of receiving the request. 5 U.S.C. § 552(a)(6)(A)(i). If the agency withholds information or is nonresponsive, the requestor may file an administrative appeal and then file suit in district court.
This Litigation Issue Page summarizes and discusses recent developments in immigration-related FOIA lawsuits. The page also provides information about attorneys' fees, non-litigation related FOIA developments, and links to FOIA resources.
FOIA Suit Seeks Release of Prosecutorial Discretion Directives and Guidelines for Removal Proceedings
National Immigrant Justice Center v. DHS, et al., No. 12-04825 (N.D. Ill. filed June 18, 2012)
The National Immigrant Justice Center (NIJC) has filed suit against six agencies for failing to respond to FOIA requests for documents related to President Obama’s new prosecutorial discretion directives and guidelines in removal proceedings. In the complaint, the NIJC alleges that DHS, USCIS, ICE, the Department of Justice, EOIR, and the Department of the Army have all failed to substantively reply to document requests. The complaint alleges that the agencies violated FOIA by failing to timely respond to NJIC’s requests. NIJC seeks declaratory and injunctive relief and attorneys’ fees.
Plaintiff Wins Partial Summary Judgment in FOIA Suit Challenging Denial of Expedited Request for Documents
Hajro v. USCIS, No. 08-1350 (N.D. Cal. filed Mar. 10, 2008)
A lawful permanent resident filed suit alleging that government defendants violated the terms of a nationwide settlement agreement regarding the processing of FOIA requests reached in Mayock v. INS, 714 F. Supp 1558 (N.D.Cal 1989) rev'd and remanded sub nom Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991). The settlement agreement in Mayock states that government agencies will expedite a FOIA request if the requestor shows exceptional need or urgency, such as potential infringements on due process rights. In the instant action, defendants refused to expedite plaintiff's FOIA request because plaintiff was not before an immigration judge. Under "Track Three" processing of FOIA requests, individuals receive expedited processing only if they are scheduled for a hearing with an immigration judge. Plaintiffs alleged that the hearing requirement violates the Mayock settlement agreement because it does not provide priority treatment for cases where the requestor demonstrates that 1) an individual's life or personal safety would be jeopardized by the failure to process a request immediately; or 2) substantial due process rights of the requestor would be impaired by the failure to process immediately. Plaintiff further alleged, inter alia, that defendants violated FOIA by failing to answer his request within 20 days and violated the APA by failing to provide a general notice of proposed rule making and public comment period prior to implementing the new “Track Three” policy. Plaintiffs sought declaratory and injunctive relief.
Defendants filed a motion for summary judgment on October 11, 2009 and plaintiffs filed a motion for summary judgment on October 5, 2009. On October 27, 2009, the court held a hearing on the motions.
On December 12, 2010, in response to a court order, plaintiff submitted a supplementary brief addressing the impact of the Ninth Circuit’s decision in Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), on plaintiff’s pending cross-motion for summary judgment. Plaintiffs argued that Dent‘s due process holding supports plaintiffs’ arguments. Dent held that 8 U.S.C. § 1229a(c)(2)(B) requires the government to produce a respondent’s A-file before a removal hearing in order to comport with due process. Plaintiffs argue that the crux of Dent’s holding is that due process requires a respondent to have timely access to documents necessary to ensure a fair opportunity to present one’s case. Thus, in Hajro, plaintiffs argue that Dent’s reasoning should apply: if a person can demonstrate that government delay in processing a FOIA request is going to impair substantial due process rights, then the FOIA request must be expedited. On April 12, 2011, the court ordered the parties to submit supplemental briefs addressing the significance of the Ninth Circuit’s March 2, 2011 order denying the government’s petition for rehearing in Dent and the Supreme Court’s decision Milner v. Dept. of the Navy, 131 S.Ct. 1259 (2011). Both parties submitted briefs.
On October 13, 2011, the court issued an order granting partial summary judgment in favor of plaintiffs. The court rejected defendants’ arguments that plaintiff Mayock lacked standing, ruling that Mayock had standing to challenge defendants’ “pattern and practice” of delayed responses to FOIA requests. The court found that injunctive relief was appropriate and ordered USCIS to: 1) provide a copy of a requestor’s file within the twenty-day time limit mandated by 5 U.S.C. § 552(a)(6)(A); and 2) give the written notice mandated by 5 U.S.C. § 552(a)(6)(B) if an extension of time is needed due to “unusual circumstances.” The court ordered the parties to submit either a stipulated form of injunction, or their respective proposed forms of injunction no later than December 18, 2011. Ruling on USCIS’ decision to apply the deliberative process privilege to exempt from disclosure certain records sought by plaintiffs, the court held that defendants had not met their burden that the records should be exempted and that they must segregate the requested factual information and disclose it. The court also found that defendants’ unlawful withholding of information underlying USCIS’ denial of plaintiff Hajro’s naturalization application violated his fundamental due process right to a fair hearing.
In ruling on the effect of the Mayock settlement agreement, the court held that the settlement agreement was not supplanted by Congress with EFOIA and the resulting expedited processing regulations, and that plaintiffs may still seek to enforce the Mayock settlement agreement. The court also found that the Track Three FOIA processing policy and regulation violated the Settlement Agreement and was promulgated in violation of the “notice and receipt of public comment” mandate in FOIA and under APA. On May 4, 2012, the court issued a permanent injunction ordering USCIS to comply with statutory FOIA request and appeal deadlines, adhere to the 1992 Mayock Settlement Agreement, and issue written notice to the USCIS Headquarters Records Center describing compliance with the terms of the injunction.
- Amended Complaint
- Defendants' Motion to Dismiss
- Plaintiff's Response to Motion to Dismiss
- Request for Production of Documents
- Requests for Admission
- Defendants’ Motion for Summary Judgment
- Plaintiffs' Motion for Summary Judgment
- Defendants’ Reply to Plaintiff’s Motion
- Plaintiff's Supplemental Brief re Dent
- Plaintiff’s Second Supplemental Brief re impact of Dent and Milner
- Defendants’ Supplemental Brief re impact of Dent and Milner
FOIA Suit Seeks Information about Barriers to Return to U.S. After Successful Challenges to Removal Orders from Outside of U.S.
National Immigration Project v. DHS, No. 11-CV-3235 (S.D.N.Y. filed May 12, 2011)
On May 12, 2011, several organizations and one individual brought suit against DHS, DOJ, and the Department of State (DOS) alleging that defendants inadequately responded to their FOIA requests. Plaintiffs requested information related to the defendants’ policy and practice of facilitating return to the U.S of individuals who successfully challenge their removal orders from outside of the country.
According to the complaint, the government has made repeated public statements, including in its briefing to the Supreme Court in Nken v. Holder, 129 S. Ct. 1749 (2009), that it has a policy and practice of bringing back individuals who prevail in their immigration cases from abroad. However, plaintiffs allege that defendants have constructed multiple barriers to the return of these individuals to the United States. According to the complaint, defendants refuse to issue the necessary travel documents for return, place the burden on individuals to pay for application fees and travel costs, detain or threaten to detain individuals upon arrival in the United States, and fail to return individuals to the status they held prior to removal.
The complaint alleges that defendants violated 5 U.S.C. § 552 by failing to conduct an adequate search for records and to disclose and release records responsive to plaintiffs’ requests. Plaintiffs seek declaratory and injunctive relief and fees.
On October 11, 2011, the plaintiffs filed for summary judgment, arguing that redacted portions of an e-mail chain between the Office of the Solicitor General and immigration agencies discussing the stay policy were improperly withheld under FOIA. On October 31, 2011, the defendants moved for partial summary judgment as to the adequacy of their claimed exemptions. On February 7, 2012, the Court partially granted the plaintiffs' motion for summary judgment and ordered the Government to disclose the portions of an email chain that contain factual descriptions of the putative policy the existence of which the OSG asserted in Nken by no later than February 13, 2012. In all other respects, the plaintiffs' motion was denied and the Government's cross-motion was granted.
On March 12, 2012, plaintiffs filed a second motion for summary judgment, and on April 2, 2012, the defendants filed a cross motion for summary judgment. On April 9, 2012, the defendants filed notice of appeal from the first round of summary judgment to the Second Circuit. However, on April 24, 2012, the Office of the Solicitor General released redacted portions of the e-mail chain and wrote a letter to the Supreme Court, informing it that the Solicitor General had overstated the formality of the policy during argument in Nken. Following that letter, the government withdrew its appeal on May 1.
On May 12, 2012, the plaintiffs filed a third motion for summary judgment, challenging the adequacy of searches performed by the State Department, the Department of Justice, and ICE. The government responded with a cross-motion for partial summary judgment on June 1, 2012. The motions are pending
FOIA Suit Seeks Information about Secure Communities Program
National Day Laborer Organizing Network v. ICE, No. 10-3488 (S.D.N.Y. filed Apr. 27, 2010)
The National Day Laborer Organizing Network (NDLON) and other advocacy groups filed a FOIA suit against ICE, DHS, FBI, and the DOJ Office of Legal Counsel for failure to provide documents related to ICE’s “Secure Communities” program.
The FOIA request seeks detailed information about the “opt-out” procedure for states and localities that do not wish to participate in the Secure Communities Program. According to plaintiffs’ complaint, defendant agencies have issued conflicting information regarding localities’ ability to opt-out, and the confusion is detrimental to local and state governments’ ability to make informed decisions about whether or not to participate in the Secure Communities program. Plaintiffs also state that defendants’ document production of thousands of pages is unusable because the documents lacked identification information and were in an unsearchable format. Defendants responded that they had adequately produced a number of records sought but that the FOIA request was unclear and overly-broad. On February 7, 2011, the court ordered defendants to provide the records sought under the negotiated Proposed Protocol in a usable format.
On July 11, 2011, the court ruled on cross motions for partial summary judgment on the application of FOIA exemptions to records produced on January 17, 2011 relating to the ability of states and localities to “opt out” of Secure Communities. The court granted defendants’ motion for summary judgment as to some of the withheld documents and portions thereof, some of which were not challenged by plaintiffs, and ordered the production of other documents the court found had been improperly withheld. In requiring the production of previously redacted text, the court noted “[t]he purpose of FOIA is to shed light on the operation of government, not to shield it from embarrassment.” The defendants were also ordered to provide revised indexes justifying other redactions in released documents. The government was ordered to produce the documents and revised indexes by August 1, 2011.
On September 2, 2011, ICE filed a motion for summary judgment on the propriety of its (b)(5) exemptions and its assertion of attorney-client privilege. On September 12, 2011, plaintiffs filed a cross motion for summary judgment for disclosure of the October 2 memorandum. On October 24, 2011, the Court denied the defendant's motion for summary judgment and granted the plaintiff's motion for summary judgment. On November 11, 2011, defendants appealed to the Circuit. On January 11, 2012, the defendants withdrew their appeal and moved for summary judgment on the adequacy of their search for Opt-Out and Rapid Production List records.
On March 2, 2012, the defendants moved for partial summary judgment. Plaintiffs responded on March 26, 2012, with a cross-motion for partial summary judgment.
AILA Lawsuit Against DHS and USCIS Seeks Documents Related to H-1B Program
AILA v. DHS, No. 10-01224 (D.D.C. July 20, 2010)
On July 20, 2010, plaintiff AILA filed a complaint in district court asking the court to order defendants to conduct a reasonable search for records responsive to two AILA FOIA requests. The requests sought the release of records concerning agency policies and procedures for the "H-1B" visa program and were both denied in full by the government. The first FOIA request specifically asked for “[c]opies of any and all guidance, including but not limited to memoranda, standard operating procedures and templates used for Request for Evidence regarding adjudicating H-1B petitions issued as a result of, in connection with, in light of, or related to the Benefits Fraud Assessment report.” The second request asked for “[t]he Compliance Review Worksheet mentioned in ‘Comment Request for Compliance Review Worksheet,’ 74 FR 15999 (April 8, 2009), a form for use by USCIS contract personnel to record the results of visits to businesses petitioning for H-1B temporary workers.”
The complaint states that defendants violated FOIA when they wrongfully withheld information responsive to both requests and failed to respond to timely respond to AILA’s requests. The complaint asks the court to enjoin defendants from continuing to withhold information relevant to the requests; to declare the requested records are not exempt from disclosure; and to award any other relief that the court deems just and equitable.
On February 24, 2011, defendants withdrew their previous motion for summary judgment after reviewing plaintiff’s cross-motion for summary judgment filed on January 14. In its February 25 minute order, the court granted the defendant's consent motion to withdraw motion for summary judgment and the proposed production and filing schedule for the action as agreed by the parties. The order also dismissed plaintiff's motion for summary judgment without prejudice. The defendants agreed to a renewed search produced additional responsive documents.
In late May 2011, AILA filed a renewed motion for summary judgment arguing that defendants continue to apply improper exemptions under FOIA and have failed to segregate and release portions of previously disclosed and newly identified documents. On June 21, 2011, USCIS filed a cross-motion for summary judgment. On March 30, 2012, the court granted the plaintiff's motion in part, denied it in part, and denied the defendant's cross-motion in full. On May 22, 2012, the defendants filed an updated Vaughn index with the court.
See the LAC Litigation page for more information and links to court documents.
Advocacy Groups File FOIA Suit Seeking Information about Stipulated Removal
Nat'l Lawyers' Guild San Francisco Chapter v. DHS, No. 08-5137 (N.D. Cal. filed Nov. 12, 2008) (CASE CLOSED)
Several advocacy groups have filed a FOIA suit against DHS and its sub-agencies and DOJ, seeking documents related to the agencies' implementation of stipulated removal. An immigration judge may order a person removed "without a hearing and in the absence of the parties" if the person signs a written document stipulating to the removal. 8 C.F.R. §1003.25(b). See also 8 U.S.C. §1229a(d). Plaintiffs allege that DHS and its sub-agencies are focusing the implementation of stipulated removal on thousands of detained immigrants, the large majority of whom are not represented by counsel. As a result, plaintiffs assert, the implementation of stipulated removal raises due process concerns. Plaintiffs allege that the agencies violated FOIA by wrongfully withholding agency records related to stipulated removal; failing to make reasonable efforts to search for records responsive to plaintiffs' requests; and for failing to assess plaintiffs as "representative of the news media" for purposes of assessing processing fees. Plaintiffs are seeking injunctive relief and attorney's fees.
After an amended complaint and answer were filed by the parties, the court approved a stipulation to vacate the motion hearing and stay proceedings on April 27, 2009. In the stipulation, defendants stated that they would conduct secondary searches for the requested documents and reconsider the bases for withholding the materials sought by plaintiffs. The parties also agreed to vacate the motion hearing on defendants' motion for summary judgment scheduled for September 25, 2009.
On November 12, 2009, the court approved a joint status report and stipulation to stay proceedings until January 30, 2010, at which point the parties will submit a joint report advising the court on the status of processing potentially responsive agency records. By November 30, 2010, plaintiffs had stipulated to the adequacy of defendants’ searches and the propriety of their holdings, with the exception of CBP. The court stayed proceedings until January 31, 2011 to allow the parties to continue negotiations and to confer further with CBP. On July 29, 2011, all parties jointly stipulated to voluntary dismissal of the claims.
Immigrant Rights Organizations Sue DHS for Documents Related to Van Nuys ICE Raid
Nat'l Immigr. Law Ctr. v. DHS, No. 08-07092 (C.D. Cal., filed Oct. 28, 2008) (CASE CLOSED)
Plaintiffs National Immigration Law Center ("NILC"), American Civil Liberties Union of Southern California ("ACLU-SC"), and the National Lawyers Guild Los Angeles Chapter ("NLG-LA") filed suit after ICE and DHS failed to respond to FOIA requests. Plaintiffs requested information related to a raid conducted by ICE at the Micro Solutions Enterprises manufacturing plant in Van Nuys, California on February 7, 2008. According to the complaint, the organizations sought records to help inform public debate about issues of public concern, including concerns about possible discriminatory and unlawful conduct relating to the raid and the possible abuses of constitutional and statutory rights of persons questioned, arrested and detained during the course of this operation. The complaint alleges that ICE and DHS violated 5 U.S.C. § 552(a)(3)(A) by failing to promptly release agency records in response to the FOIA requests, and further violated 5 U.S.C. § 552(a)(1) & (a)(2) by failing to make records available to the public. Plaintiffs seek declaratory and injunctive relief and fees.
Defendants filed an answer on December 1, 2008, and the parties jointly stipulated to a scheduling order on February 13, 2009. Among other provisions, the order stated that defendants would conduct searches for the requested documents and provide formal responses. On June 15, the parties submitted a joint status report describing documents released by defendants. In the report, the parties stipulated that discovery was premature; that they continue to work cooperatively towards narrowing the issues in the dispute; and that defendants will provide a supplemented Vaughn index.
The court accepted a joint stipulation of voluntary dismissal of claims on May 6, 2010. Complaint
Court Dismisses California Non-Profits' FOIA Suit Against CBP
Asian Law Caucus v. U.S. Dep't of Homeland Security, 2008 U.S. Dist. LEXIS 98344 (N.D. Cal. Nov. 24, 2008) (CASE CLOSED)
A district court in California dismissed a lawsuit filed by two not-for-profit organizations, the Asian Law Caucus and the Electronic Frontier Foundation, against Customs and Border Protection (CBP) for failing to properly reply to a FOIA request. The organizations filed the initial FOIA request after receiving complaints from Northern California residents who reported lengthy searches and inspections at U.S. ports of entry. According to the complaint, CBP officials asked individuals their family backgrounds, religion and political beliefs. CBP officials also inspected plaintiffs' personal items, such as cell phone directories, laptop files and photographs, and in some instances, made copies of the information. The FOIA request asked for records of CBP's policies and procedures related to the questioning, searches and inspections of travelers entering or returning to U.S. ports of entry from September 11, 2001 to present. The complaint alleged that CBP violated FOIA when it failed to make a determination regarding the FOIA request within 20 days or provide notice when that determination would be made.
Pursuant to an agreement between the parties, defendants produced a limited number of documents in June and July 2008, but plaintiffs continued to challenge defendants' withholding of certain documents. Defendants filed a motion for summary judgment on October 14, 2008, claiming that the documents sought by plaintiffs were properly withheld pursuant to exemptions at 5 U.S.C. § 552(b)(2), (b)(5) and (b)(7)(E).
On November 24, 2008, the court granted defendants' motion for summary judgment and denied plaintiffs' cross-motion for summary judgment. The court reasoned that defendants properly withheld certain documents under the cited FOIA exemptions. The court closed the case the same day.
Court Rules on Agencies Motions for Summary Judgment in FOIA Suit
El Badrawi v. Dep't of Homeland Security, No. 07-00372 (D. Conn. July 29, 2009) (CASE CLOSED)
A district court in Connecticut issued a ruling in a FOIA case on defendant federal agencies' motion for summary judgment. The case arose from FOIA requests by a foreign national whose visa was administratively revoked and who was then placed in deportation proceedings. The plaintiff brought suit against several agencies including, among others, the Department of Homeland Security (DHS), the Department of State (DOS), and the Department of Justice (DOJ). Plaintiff alleged that the agencies were largely unresponsive to his FOIA requests. Defendants then filed a motion for summary judgment with respect to the agencies' handling of his requests.
On September 30, 2008, the court granted in part and denied in part the defendants' motions for summary judgment. The court denied defendants' motions for summary judgment related to the adequacy of the agencies' searches for documents and allowed plaintiff limited discovery related to this claim. The court granted defendants' motions for summary judgment with respect to the propriety and reasonableness of the agencies' decisions to refer certain records to the records' originating agencies for review and for direct response to the requester. The court denied certain agencies' motions for summary judgment as it related to certain withheld documents and ordered the agencies to submit withheld documents to the court for in camera review to determine whether they had been properly withheld. Finally, the court denied defendants' motions for summary judgment on the issue of segregability.
On February 23, 2009, the court issued an amended ruling on the in camera review of the requested documents. It concluded that certain materials had been improperly withheld and ordered the agencies to provide plaintiff with these materials. See also El Badrawi v. Dep't of Homeland Security, 596 F. Supp. 2d 389 (D. Conn. 2009) (first ruling re: in camera review; issued January 14, 2009). The court also determined that defendants had failed to segregate several non-exempt documents from exempt materials, and ordered the agencies to produce specific non-exempt portions and to file supplemental Vaughn indices.
On March 2, 2009, the court issued an order stating defendant, Department of Justice, satisfied its obligation to the plaintiff and terminated it as a defendant. On July 23, 2009, the court approved a joint stipulation filed by the plaintiff and the remaining defendants resolving the remaining claims.
On July 29, 2009, the court entered a final judgment in the case closing the case.
On October 26, 2009, the court referred the case to a magistrate judge for a settlement conference on the issue of attorneys’ fees and costs. The settlement conference is scheduled for January 22, 2010. On November 23, 2009, the court granted plaintiff’s consent motion for an extension of time to file a motion for reasonable attorneys’ fees and costs pursuant to 5 U.S.C. §552(a)(4)(E). Plaintiff’s motion is now due on February 22, 2010, one month after the scheduled settlement conference.
Organizations Sue DHS under FOIA for Documents Related to June 2007 New Haven Raids
Unidad Latina v. DHS, No. 07-1224 (D. Conn. Nov. 9, 2009) (CASE CLOSED)
Plaintiffs, Unidad Latina en Accion and Junta for Progressive action, Inc. brought suit against the DHS after DHS failed to respond to plaintiffs' FOIA requests. Plaintiffs sought documents related to an ICE Operation in Hartford, Connecticut, that resulted in multiple arrests. According to the complaint, the ICE raid took place soon after New Haven adopted a municipal identification program intended to integrate non-citizens into civic life. Plaintiffs seek to determine whether the ICE operation was carried out in accordance with applicable federal, state, and local statutes and regulations. The complaint alleges that DHS violated FOIA by failing to respond to plaintiffs' FOIA requests pursuant to 5 U.S.C. § 552, and by failing to affirmatively disclose its records pursuant to 5 U.S.C. § 552(a)(1)-(2).
On January 30, 2009, the court denied defendants' motion for summary judgment as moot. The court held an in camera review on March 27, 2009, and found that defendants had properly withheld certain portions of documents, but other documents had been improperly withheld from plaintiffs or were reasonably segregable. The court ordered defendants to disclose the improperly withheld documents to plaintiffs.
On November 5, 2009, the court approved a joint stipulation resolving all remaining claims other than costs and attorneys’ fees. On November 11, 2009, the court closed the case, entering judgment in favor of the Plaintiffs in part and in favor of the Defendant in part, pursuant to the terms and conditions of the stipulation.
- Documents released as a result of the lawsuit, available on the National Immigration Project Website
- Order on Motion for Summary Judgment
Organizations Sue DOS and DOJ under FOIA for Documents Related to June 2007 New Haven Raids
Unidad Latina v. DOS, No. 07-01478 (D. Conn. Dec. 5, 2008) (CASE CLOSED)
Plaintiffs, Unidad Latina en Accion and Junta for Progressive action, Inc., brought suit against the Department of State (DOS) and the Department of Justice (DOJ) after the agencies failed to respond to plaintiffs' FOIA requests. Plaintiffs sought documents related to an ICE Operation in Hartford, Connecticut, that resulted in multiple arrests. According to the complaint, records received from DHS indicated that DOS employees from the Diplomatic Security Service and DOJ employees from the United States Marshals Service participated in the enforcement operation. Plaintiffs sought to determine whether the ICE operation was carried out in accordance with applicable federal, state, and local statutes and regulations.
Further, the complaint sought to determine why DOS and DOJ are engaged in enforcement of civil immigration laws on U.S. soil - which, pursuant to statute, should be the exclusive responsibility of DHS. The complaint alleged that DOS and DOJ violated FOIA by failing to respond to plaintiffs' FOIA requests pursuant to 5 U.S.C. § 552, and by failing to affirmatively disclose agency records pursuant to 5 U.S.C. § 552(a)(1)-(2).
On Sept. 30, 2008, plaintiffs and defendant DOS jointly moved to dismiss the action against DOS, and the court granted the motion and dismissed the case the same day. On October 21, 2008, the remaining parties submitted a joint stipulation that resolved all issues as to DOJ's search for documents. On December 4, 2008, the parties stipulated to dismiss the case against DOJ, and the court dismissed the case on December 5, 2008.
Commission Upholds City's Denial of Records Request Due to Safety Concerns
Powell v. City of New Haven, #FIC 2007-498 (Freedom of Information Commission of the State of Conn. July 9, 2008) (CASE CLOSED)
The Connecticut Freedom of Information Commission upheld the city of New Haven's refusal to release certain records related to the Elm City Resident Card program. Complainants requested the names, addresses and photographs of the city residents who were issued cards as part of the program, which is intended to offer easy access to municipal services for residents. The city issued the cards without regard for residents' citizenship, and according to the Commission's decision, the issuance incited controversy because some viewed the program as a method of helping "illegal immigrants." The city withheld the requested information pursuant to several exemptions.
The Commission upheld the city's decision to withhold the requested information pursuant to an exemption that allows withholding if disclosure of records "may result in a safety risk to one or more persons under Conn. Gen. Stat. §1-210(b)(19)…" The Commission found that the city properly relied on imminent threats of violence against undocumented immigrants and did not violate Connecticut's Freedom of Information (FOI) Act by withholding the requested records.
District of Columbia
FOIA Suit Challenges DHS Failure to Disclose Documents Related to Individual’s Arrest and Detention
Hussain v. DHS, No. 07-1633 (D.D.C. filed Sept. 14, 2007) 674 F. Supp. 2d 260 (D.D.C. 2009) (CASE CLOSED)
An asylee filed suit against DHS, alleging DHS violated FOIA by improperly relying on exemptions under 5 U.S.C. § 552(b)(2), (5)-(7) to withhold and redact documents, failing to produce reasonably segregable portions of withheld documents pursuant to 5 U.S.C. § 552(b), conducting an inadequate search for records pursuant to 5 U.S.C. § 552(a)(3), and failing to respond to plaintiff’s administrative appeal within 20 days as required by 5 U.S.C. § 552(a)(6)(C)(i). The plaintiff’s initial FOIA request sought agency documents relating to his July 2003 arrest by border patrol agents and subsequent nine-month detention.
The court later denied plaintiff’s motion for summary judgment, and granted in part and denied in part defendant’s motion for summary judgment. The court explained in a December 18, 2009 opinion that the defendant’s search was adequate; however, defendant’s Vaughn Index was inadequate. Specifically, DHS did not issue a sufficiently detailed Vaughn Index that would enable the court or the plaintiff to understand the withheld information in order to address the merits of the claimed exemptions. Because the Vaughn Index was inadequate, DHS did not meet its burden to justify withholding under exemptions 5 U.S.C. § 552(b)(2), (b)(5) and (b)(7)(E) The court ordered the defendants to either release the withheld documents or to produce a legally adequate Vaughn Index.
On August 27, 2010, the court dismissed the case according to a settlement reached between the parties. Defendant DHS agreed to pay a lump sum for costs and expenses involved in the litigation. Plaintiff withdrew any claims to documents sought through the FOIA request.
National Association of IT Firms’ FOIA Action Seeks DHS and USCIS H-1B Visa Policy Documents (CASE CLOSED)
TechServe Alliance v. Napolitano et al, No. 10-0353 (D.D.C. filed March 4, 2010)
Plaintiff TechServe Alliance, a national association of firms that specialize in hiring information technology (IT) employees, filed suit against DHS and USCIS requesting that the court compel disclosure of documents relating to H-1B petitions and related policies. The complaint alleged that defendants failed to respond to the FOIA request within the statutorily-mandated time limit and did not explain why more time was needed to comply with the request. Having received no response after the initial and sole communication from defendants acknowledging receipt of the FOIA request, plaintiff initiated the action on March 4, 2010.
On June 24, 2010, defendants released documents in response to plaintiffs request. On July 24, 2010, defendants filed a motion for summary judgment based on their belief that they had complied fully with the FOIA request by disclosing all documentation not falling within one of the FOIA exemptions. Plaintiffs filed a cross-motion for summary judgment on August 26, stating that defendants’ release of 286 documents in full, 71 in part, and 695 blank pages did not sufficiently comply with the request. Plaintiff also stated that defendants failed to adequately explain reasons for withholding the documents and requested that the court enjoin defendants from further nondisclosure.
Plaintiff and defendants submitted supplemental briefing in early September 2010. On August 11, 2011, the court entered summary judgment for all defendants and all claims and denied the plaintiff's cross-motion for summary judgment. Judge Royce Lamberth held that although USCIS' response to the FOIA was delayed, the court held that USCIS had conducted a good faith search for documents and properly claimed FOIA exemptions. The case closed the same day.
Immigrants’ Rights Group Wins FOIA Suit Seeking Records of ICE Raid
Casa de Maryland v. DHS, No. 10-1264 (4th Cir. 2011 decided Jan. 31, 2011) (CASE CLOSED)
The 4th Circuit affirmed a Maryland district court decision requiring ICE to produce unredacted records pertaining to a January 2007 ICE raid at a Baltimore 7-Eleven and the agency’s internal investigation of alleged misconduct during the raid. Casa de Maryland filed a FOIA request with ICE seeking records of the raid and subsequent internal investigation after an Office of Professional Responsibility report concluded that the allegations of civil rights abuses were unsubstantiated. ICE produced the report, but redacted the names of agents involved in the ICE raid and employees involved in the subsequent removal proceedings. It stated that revealing the names could “subject these individuals to unwanted contact… and/or expose them to unreasonable annoyance, harassment, or threats or reprisal.” The district court determined that Casa had shown sufficient facts to suggest that misconduct had occurred, and that the public interest in revealing the information outweighed ICE’s privacy interest.
The circuit court agreed with the district court’s finding that ICE had identified a legitimate privacy in keeping the identities of ICE agents and employees confidential, but that Casa had shown a substantial need for the unredacted report as well as sufficient facts to show impropriety. Importantly, the court recognized that some declarations of ICE agents obtained by Casa differed greatly from the affidavits within the ICE investigative report. Having determined that the public interest in obtaining the complete records outweighed the privacy interests, the court affirmed the district court decision requiring ICE to produce the unredacted reports.
Immigrants' Rights Group Sues County Office, Police Department in State FOIA Action
Casa de Maryland v. Anne Arundel Office of the County Executive and Anne Arundel County Police Department, No. 303286 (Montgomery County Cir. Ct. filed Oct. 28, 2008) (CASE CLOSED)
An immigrants' rights group in Maryland filed suit under the Maryland Public Information Act (PIA) against the Anne Arundel Office of the County Executive and the Anne Arundel County Police Department. According to the complaint, defendants failed to respond to plaintiff's request for documents and, consequently, did not comply with their obligations under the PIA. The plaintiff is seeking information regarding an immigration raid in Annapolis involving 50 police officers from the county police department. The complaint alleges that defendants violated individual constitutional rights by, inter alia, entering homes without warrants or exigent circumstances, interrogating individuals while in custody without reasonable suspicion of unlawful immigration status, and engaging in racial profiling. Plaintiffs are seeking declaratory and injunctive relief and attorneys' fees.
On September 11, 2009, the court granted defendants’ motion for summary judgment and dismissed the case.
Immigrants' Rights Group Files State FOIA Suit
Casa de Maryland v. Frederick County Sheriff's Office, No. 304960 (Montgomery County Cir. Ct. filed Nov. 25, 2008) (CASE CLOSED)
An immigrants' rights group in Maryland has filed suit against the Frederick County Sheriff's Department for failure to comply with the Maryland Public Information Act (PIA). The complaint was filed on November 25, 2008, in the Circuit Court for Montgomery County, Maryland. The plaintiff is seeking the production of records regarding information on the department's participation in federal immigration enforcement. Defendants previously entered into a Memorandum of Agreement with ICE based on INA § 287(g). Plaintiffs also seek records that could confirm or dispel the "widely-suspected possibility" that defendants have been racially profiling individuals who are, or appear to be, of Hispanic or Latino origin. According to the complaint, the sheriff's department violated the IPA when it, inter alia, unlawfully delegated the record search to ICE, which also denied release of the documents; denied existence of certain records; and denied ownership of the records. Plaintiffs are seeking damages, injunctive relief and attorneys' fees.
The parties reached a settlement for limited disclosure of records and, pursuant to the settlement agreement, the court dismissed the case on October 13, 2009.
FOIA Suit Seeks Information About ICE Raids in New Jersey
Seton Hall School of Law Center for Justice and Evicao El Brasileira v. DHS, No. 08-00521 (D.N.J. filed Jan. 28, 2008) (CASE CLOSED)
Seton Hall School of Law and Evicao El Brasileira (d.b.a. Brazilian Voice) filed a FOIA suit to compel ICE and USCIS to release records relating to ICE's enforcement efforts in New Jersey. In particular, the plaintiffs are seeking records regarding a pattern and practice of pre-dawn, warrantless raids in New Jersey as well as policies and procedures regarding home raids in general. The plaintiffs submitted their FOIA request on December 13, 2007. They requested expedited processing because the FOIA request involves an "urgency to inform the public about an actual or alleged federal government activity" pursuant to 6 C.F.R. § 5.5(d). On January 15, 2008, DHS acknowledged receipt of the FOIA request and denied the request for expedited processing.
The complaint alleges that the denial of expedited processing violates FOIA and its implementing regulations. In addition, the complaint alleges that defendants violated FOIA when they failed to timely respond to plaintiffs' FOIA requests and failed to release the requested documents. Plaintiffs seek injunctive relief and attorneys' fees.
On October 30, 2008, the court issued a stipulation of a partial settlement. Plaintiffs agreed to the dismissal of two claims; defendants agreed to produce a revised Vaughn index for ICE and I-213 Forms, Record of Deportable/Inadmissible Alien, requested by plaintiffs. Defendants then filed a December 22, 2008 motion requesting, inter alia, that the court dismiss plaintiffs’ remaining claims because DHS properly responded to the FOIA request and properly denied plaintiffs’ request for expedited processing.
On May 21, 2009, defendants requested that their motion to dismiss be withdrawn, and the court granted the motion on May 26, 2009. The parties reached a settlement on October 16, 2009, and based on the settlement agreement, the court dismissed the case the same day.
Immigrant Rights Organization Wins FOIA Suit Seeking Records of CBP Enforcement Operations in Upstate New York
Families for Freedom v. U.S. Customs & Border Prot., 2011 U.S. Dist. LEXIS 63829 (S.D.N.Y. June 16, 2011) (CASE CLOSED)
On June 16, 2011, a district court in New York issued a ruling in a FOIA case requiring CBP authorities to turn over hundreds of documents pertaining to the scope and practices of their operations on inter-city buses and trains in upstate New York. Families for Freedom along with three unnamed individual plaintiffs had submitted FOIA requests to CBP, ICE and DHS, seeking information concerning the activities of the Buffalo Sector of the U.S. Border Patrol and the related activities of ICE, claiming that the Border Patrol officers improperly engaged in “interior enforcement of immigration laws by questioning bus and train travelers about their immigration status on inter-city conveyances that never cross the border.” Plaintiffs alleged that these activities exceeded the Border Patrol’s statutory and regulatory authority and violated the Fourth Amendment. Plaintiffs sought records documenting these unlawful activities in order to help the public assess the value of transportation raids and because the documents are directly relevant to various pending deportation proceedings, including those of the three individual plaintiffs.
Plaintiff Jane Doe sent the first FOIA request to CBP on February 26, 2009, requesting the production of records, including I-213 arrest forms for persons arrested on Amtrak trains by Rochester border patrol officers and statistics, quotas and reports on arrests made by officers of the Rochester Station. Families for Freedom joined the request shortly before CBP’s final response, issued July 22, 2009, identified responsive documents, the majority of which were withheld completely, some were withheld partially, and the remainder were awaiting review of other agencies. After plaintiffs appealed the final response, CBP indicated that it would perform a new search in cooperation with plaintiffs’ counsel, but no progress was made. Plaintiffs filed suit on March 26, 2010 alleging that CBP had violated FOIA by failing to release records. On April 2, 3010, Families for Freedom and the three plaintiffs filed new FOIA requests seeking similar, but updated data from CBP, ICE and DHS. None of the agencies provided a substantive response within twenty days of receiving the FOIA request and plaintiffs’ complaint was amended to include claims against ICE and DHS for failure to respond to the requests.
In response to the suit and in line with a subsequent agreement with plaintiffs, CBP and ICE identified further responsive documents, of which they produced some in their entirety and others with redactions, but withheld the majority in their entirety. The federal agencies sought summary judgment on whether the records were properly withheld based on the claimed exemptions, while the plaintiffs sought the production of documents they claimed were improperly withheld or redacted. The district court judge granted summary judgment as to some documents, but ordered the release of much of the withheld material, including arrest records in Buffalo from 2004-2009, and two documents believed to be training materials, as well as the names of the authors and recipients of documents believed to describe a quota system. The agencies were given until July 1st to comply with the order.
FOIA Suit Related to ICE's Home Raids Settles
Families for Freedom v. U.S. Bureau of Immigration and Customs Enforcement, No. 08-5566 (S.D.N.Y. Jan. 27, 2009) (CASE CLOSED)
An immigrants' defense network and an individual arrested in an ICE home raid filed a FOIA action against ICE, seeking records on its procedures, policies and practices related to ICE's home raids without judicial warrants. Specifically, plaintiffs are seeking information regarding ICE agents' violations of the Fourth Amendment during the course of the raids. In their complaint, plaintiffs allege that ICE agents routinely enter homes without permission, armed only with administrative warrants that do not allow them to enter homes without consent. Plaintiffs also allege that ICE agents use the home raids as a pretext to question and detain not only the target individual, but anyone else in the home who they suspect is undocumented. The complaint asserts that there is little public information available about ICE's home raids, the widespread nature of the raids, or violations of the Fourth Amendment that occur during the raids. Plaintiffs allege that defendants improperly failed to disclose the records requested and improperly denied their requests for expedited processing and fee waivers.
After filing the lawsuit, plaintiffs and defendants entered into several stipulated agreements agreeing to defendants' production of certain documents. On January 27, 2009, the parties agreed to settle the remainder of their disputes without litigation and to dismiss the action with prejudice.
Editor Brings State FOIA Action Against CCA
Friedmann v. Corrections Corporation of America, No. 08-1105I (Ch. Ct. of Davidson County, Tenn. Sept. 2, 2008) (CASE CLOSED)
An editor of a publication that reports on prison-related news filed a petition for access to certain records held by the Corrections Corporation of America (CCA). The petition alleged that CCA violated the Tennessee Public Records Act when it denied him access to the records. Because CCA is a private organization that performs a traditionally governmental function, the petition stated that CCA is required to comply with requests under the Act. Plaintiff requested, inter alia, records of all complaints filed against CCA in Tennessee in which the company paid more than $500 in damages; government reports and investigations related to CCA's operation of prison and detention facilities; Tennessee court rulings issuing injunctive or declaratory judgments against CCA; and CCA contracts for jails and immigration facilities in Tennessee.
On September 2, 2008, the chancery court held that CCA must respond to FOIA requests as if it were a government entity, reasoning that the maintenance of prisons has been a traditionally governmental activity. The court further stated that even if there had been no contractual relationship between CCA and the government, plaintiff still would be entitled to the requested documents because they concern inmates. However, the court held that petitioner Friedmann was not entitled to attorney’s fees because CCA was reasonable in its belief that, as a private organization, it was not subject to the Tennessee Public Records Act. The court explained that it will award attorney’s fees under the Act only when the withholding of information was willful and done in bad faith.
Attorney General Issues New FOIA Guidelines; Underscores Commitment to Open Government
On March 19, 2009, the Attorney General issued new FOIA guidelines pursuant to the President's directive. He rescinded the Attorney General's FOIA Memorandum of October 12, 2001, which stated that the DOJ would defend decisions to withhold records "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."
Instead, the Attorney General stated, the DOJ would defend a denial of a FOIA request only if 1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or 2) disclosure is prohibited by law.
The memorandum states that the new guidance should be taken into account and applied in pending litigation if practicable when, in the judgment of the DOJ lawyers handling the matter and relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information. See Memorandum.
On September 29, 2009, these guidelines were published in the Federal Register.
White House Issues Memorandum for the Heads of Executive Departments and Agencies on Freedom of Information Act
In a January 21, 2009 memorandum, President Obama directed the Attorney General to issue new guidelines governing FOIA to the heads of executive departments and agencies. The memorandum stated that the guidance should reaffirm the government's commitment to accountability and transparency and should be published in the Federal Register. The memorandum also directed the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish this guidance in the Federal Register. See Memorandum, http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/
USCIS' Three Track System for Responding to FOIA Requests
USCIS announced a third "track" for processing FOIA requests in a notice that took effect on March 30, 2007. 72 Fed. Reg. 9017-18 (Feb. 28, 2007). Now, USCIS has three "tracks" for processing FOIA requests. Track 1 is for less complex requests that can be processed in 20 working days or less. Track 2 is for complex requests that may require more than 20 working days to process and that include searching and line-by-line review of numerous pages of information. Track 3, the more recently enacted ''Notice To Appear'' track, provides accelerated access to the Alien-File (A-File) for individuals who have been served with a charging document and have been scheduled for a hearing before an immigration judge as a result. Track 3 cases do not include cases in which the immigration judge has issued a final order or cases in which an appeal of an immigration judge's decision has been filed with the Board of Immigration Appeals (BIA). Track 3 cases also do not include cases in which the subject's date of scheduled hearing before the immigration judge has passed and current records indicate that the subject failed to appear for his/her scheduled hearing, resulting in closure of the removal/deportation proceedings by the immigration judge.
Open Government Act of 2007 Amends Attorney Fees Provision of FOIA
See section below, Attorney Fees, for an explanation of the impact of the 2007 amendments to the FOIA attorney fees provision.
In January 2007, Congress enacted the "Open Government Act of 2007." The Act amended several provisions of FOIA including the attorney fees provision, 5 U.S.C. § 552(a)(4)(E). The new language describes how a plaintiff can recover fees and litigation costs after filing a FOIA lawsuit. Specifically, the amended attorney fees provision 1) defines when a plaintiff in a FOIA action has substantially prevailed and 2) changes the method by which attorney fees and costs are paid to FOIA plaintiffs.
The amended FOIA provision states that a plaintiff has "substantially prevailed" and is therefore eligible for attorney fees, if the plaintiff obtained relief through 1) a judicial order, or an enforceable written agreement or consent decree; or 2) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial. Prior to the amendment, the FOIA fee-shifting provision simply stated that the court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed."
Method of Fee Payment
FOIA also now provides that attorney fees and costs are to be paid directly by the agency, using funds "appropriated for any authorized purpose." Prior to the amendment, the Claims and Judgment Fund of the United States Treasury paid attorney costs and fees.
Impact of Changes
The new provision of the FOIA statute defining when a plaintiff has substantially prevailed significantly increases the availability of attorney fees for FOIA requestors. By stating that a plaintiff in a FOIA suit substantially prevails when an agency voluntarily or unilaterally changes its position as a result of the lawsuit, the new FOIA provision eliminates the impact of the Supreme Court's decision in Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Serv., 532 U.S. 598 (2001). In Buckhannon, the Supreme Court held that an agency's voluntary change in conduct lacked the necessary judicial imprimatur, and a "prevailing party" could only include plaintiffs who received a judgment on the merits or a court-ordered consent decree. Id. at 600, 605 (interpreting whether plaintiffs were "prevailing parties" under the Fair Housing Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990 (ADA)).
In enacting the new FOIA provisions, Congress specifically rejected Buckhannon: "[t]he bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requestor can obtain attorney fees when he or she files a lawsuit to obtain records from the Government and the Government releases those records before the court orders them to do so." S. Rep. No. 110-59, pt. 1 at 4 (2007) (statement of Sen. Leahy). See Judicial Watch v. Bureau of Land Mgmt., 562 F. Supp. 2d 159 (D.D.C. 2008) (explaining impact of the Open Government Act of 2007 on FOIA attorney fees provisions). Thus, plaintiffs no longer must receive a judgment on the merits or a consent decree to recover fees, but may recover fees by establishing that an agency voluntarily or unilaterally changed their position.
Courts have begun to interpret the new FOIA provisions. Practitioners should research the case law in their circuit to determine how courts are interpreting the new FOIA provisions; whether courts are applying the provisions retroactively; and to what extent courts are applying their circuit's pre-Buckhannon precedent. See e.g. Judicial Watch v. Bureau of Land Mgmt., 562 F. Supp at 172-75 (finding the new provisions applied retroactively and applying pre-Buckhannon D.C. Circuit precedent, including the four factor "entitlement" analysis).
The following is a non-exhaustive list of decisions issued after Congress enacted the new FOIA provisions:
- Barnard v. DHS, 656 F. Supp.2d 91 (D.D.C. 2009)
Held that plaintiff could not recover attorney fees because the Open Government Act amendments to FOIA did not apply retroactively, and he was not entitled to recover fees because the purpose of the lawsuit was not for the public benefit.
- Summers v. DOJ, 569 F.3d 500 (D.C. Cir. 2009)
Found the Open Government Act amendments to FOIA could not be applied retroactively and affirmed district court decision that plaintiff did not prevail under the pre-amendment standard.
- Oregon Natural Desert Ass’n v. Locke, 572 F.3d 610 (9th Cir. 2009)
Found the Open Government Act amendments to FOIA could not be applied retroactively, but found plaintiff entitled to attorneys fees for one claim under pre-amendment standard.
- Zarcon v. Nat’l Labor Relations Bd., 578 F.3d 892 (8th Cir. 2009)
Found the Open Government Act amendments to FOIA could not be applied retroactively, and affirmed district court decision that plaintiff did not prevail under pre-amendment standard.
- N.Y.C. Apparel F.Z.E. v. United States Customs & Border Prot. Bureau, 563 F. Supp. 2d 217 (D.D.C. 2008)
Found the Open Government Act amendments to FOIA could not be applied retroactively and denied plaintiff's motion for attorney fees.
- Judicial Watch v. Bureau of Land Mgmt., 562 F. Supp. 2d 159 (D.D.C. 2008)
Found the Open Government Act amendments to FOIA could be applied retroactively, found plaintiff was the prevailing party; and granted plaintiff's motion for attorney fees.
- Wildlands CPR v. United States Forest Serv., 558 F. Supp. 2d 1096 (D. Mont. 2008)
Found the Open Government Act amendments to FOIA could be applied retroactively; found plaintiff was prevailing party; and granted plaintiff's petition for attorney fees.
Immigration Cases interpreting the 2007 amendment to the FOIA fees provision:
- Von Grabe v. DHS, 2010 WL 6516491 (M.D. Fla. 2010)
Granted attorney fees and litigation costs in lawsuit to recover copy of wrongly withheld I-130 form.
- Contreras v. DOJ, 729 F. Supp. 2d 167 (D.D.C. 2010)
Held that plaintiff had not “substantially prevailed” due to an agency’s “voluntary or unilateral change in position” after the initiation of a FOIA lawsuit for purposes of recovering attorney fees because the delay in production of records was due to plaintiff’s failure to provide information about his identity.
The following is a non-exhaustive list of FOIA resources. If you are contemplating litigation, be sure to research FOIA litigation in your circuit.
Freedom of Information Act (FOIA), 5 U.S.C. §552
- White House Memorandum for the Heads of Executive Departments and Agencies on Freedom of Information Act
- Attorney General Memorandum for the Heads of Executive Departments and Agencies on Freedom of Information Act
- DOJ's FOIA Resource Guide
- USCIS FOIA webpage
- DHS FOIA webpage
- DOS FOIA webpage
- DOL FOIA webpage
- 5 U.S.C. § 552(a)(4)(E) provides for attorneys' fees in FOIA actions
- John Patrick Pratt & Scott D. Pollock, “Getting the Facts on Your Client: FOIA and Criminal Records Searches,” Immigration & Nationality Law Handbook 53-66, (Stephanie L. Browning ed., American Immigration Lawyers Association 2005-2006).
- Jeff Joseph, Nadine Wettstein, Thomas Ragland, and Matthew Guadagno “Thinking Outside the Bureaucratic Box: Using the Federal Court to Challenge Unlawful Agency Action,” Immigration & Nationality Handbook (2009-2010 Edition).
- “Litigating FOIA Cases,” by Kip Evan Steinberg, 21st Annual AILA California Chapters Handbook (2008 Edition).
Asian Law Caucus
- The website provides advice for international travelers returning to the United States.
- The website also provides a sample FOIA and Privacy Act request to Customs and Border Protection that asks for information about an experience entering the country.
Electronic Frontier Foundation (EFF)
- EFF is a non-profit organization that sponsors the FOIA Litigation for Accountable Government (FLAG) Project. Through Freedom of Information Act (FOIA) requests, FLAG helps to protect individual liberties and hold the government accountable.
- ICE FOIA Logs: Information about past FOIA requests, whether they were granted, and reasons for non-disclosure, if applicable.
- FOIA Improvement Plan: Includes information about DHS' backlog reduction goals and an overall DHS FOIA improvement plan.
- FOIA Annual Reports: 2003 - 2007
- Detention Facility Reviews/Audit
Electronic Privacy Resource Center (EPIC)
- EPIC is a public interest research center, established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and other Constitutional values.
- EPIC's webpage provides a list of FOIA resources and guides
Litigation Under the Federal Open Government Laws, (Harry A. Hammitt, Marc Rotenberg, Melissa Ngo and Mark S. Zaid, Eds., 2006)
- This book includes recent case developments and an index to key terms. Appendices include a sample FOIA request, a sample request for expedited processing, and sample pleadings for the FOIA, the Privacy Act, the Federal Advisory Commission Act, and the Government in Sunshine Act. The appendices are available free online. The book can be purchased at their online bookstore.
Transactional Records Access Clearinghouse (TRAC)
- TRAC FOIA Project - providing documents from FOIA cases brought in federal district court
- The website also provides reports on FOIA activities
Law Review Articles
- Barbour, Ava, Ready... Aim... FOIA! A Survey of the Freedom of Information Act in the Post-9/11 United States, 13 B.U. Pub. Int. L.J. 203 (Spring 2004).
This note provides an overview of FOIA and discusses trends and exemptions pertaining to various federal agencies, including DHS.
- Fleurantin, Larry R., Immigration Law: Nowhere to Turn - Illegal Aliens Cannot Use the Freedom of Information Act as a Discovery Tool to Fight Unfair Removal Hearings, 16 Cardozo J. Int'l & Comp. L. 155 (Spring 2008).
This article argues against the Attorney General's and DHS' authority to withhold information under FOIA's (b)(5) exemption.
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