|Last updated July 17, 2009|
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.
Advocacy Groups File FOIA Suit Seeking Information about Stipulated Removal
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 June 25, 2009, the court approved a joint status report and stipulation to stay proceedings until July 24, 2009, at which point the parties will submit a joint report on the status of processing potentially responsive agency records.
Organizations Sue DHS for FOIA Violations
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 possibly discriminatory and unlawful conduct relating to the raid and the possible abuses of constitutional and statutory rights of persons question, 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.
On June 18, the court ordered the status conference and scheduling conference to be continued from June 22, 2009 to August 24, 2009.
Court Dismisses California Non-Profits' FOIA Suit Against CBP
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.
FOIA Suit Challenges Denial of Expedited Request for Documents
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, 736 F. Supp. 1561 (N.D. Cal. 1990). 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. Plaintiff alleges 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 alleges, inter alia, that the denial of expedited processing of his FOIA request violates the Mayock settlement agreement, and that defendants violated FOIA by failing to answer his request within 20 days. The plaintiff seeks declaratory and injunctive relief.
Defendants filed a motion to dismiss the complaint on January 5, 2009. Plaintiff filed a response to the motion to dismiss, and the parties took part in a mediation session on January 21, 2009. On January 23, 2009, the court vacated a February 10, 2009 hearing date so the parties could pursue settlement of the case through continued mediation. On May 22, 2009, the court, pursuant to stipulation, ordered the parties to either file a stipulated dismissal or to seek other relief on or before July 23, 2009. The court also continued the pre-trial conference and the trial until August 4, 2009, and August 17, 2009, respectively.
Court Rules on Agencies Motions for Summary Judgment in FOIA Suit
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 a 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. 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.
A status conference was held in chambers on June 25, 2009, and the parties are required to file a stipulation by July 16, 2009.
Organizations Sue DHS under FOIA for Documents Related to June 2007 New Haven Raids
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 June 19, 2009, the parties jointly stipulated to the adequacy of defendants' search. Defendants will file a motion for summary judgment by September 4, 2009, pertaining to all withheld records as to which the parties could not reach agreement.
Organizations Sue DOS and DOJ under FOIA for Documents Related to June 2007 New Haven Raids
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
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.
Immigrants' Rights Group Sues County Office, Police Department in State FOIA Action
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, detentively interrogating individuals without reasonable suspicion of unlawful immigration status, and engaging in racial profiling. Plaintiffs are seeking declaratory and injunctive relief and attorneys' fees.
Immigrants' Rights Group Files State FOIA Suit
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.
FOIA Suit Seeks Information About ICE Raids in New Jersey
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. Defendants then filed a December 22, 2008 motion requesting that the court dismiss the rest of the claims for lack of jurisdiction or, in the alternative, grant summary judgment.
On May 21, 2009, defendants requested that their motion to dismiss be withdrawn, and the court granted the motion on May 26, 2009. A status conference has been scheduled for July 15, 2009.
FOIA Suit Related to ICE's Home Raids Settles
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
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.
Non-Litigation Related Developments
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, http://www.usdoj.gov/ag/foia-memo-march2009.pdf
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.
Method of Fee Payment
Impact of Changes
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:
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