FOIA Motion for Judgment on the Pleadings

Novel Attempt to Avoid Government Dithering

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A release from ICE that revealed a heretofore secret policy position on its work program took SIX YEARS of FOIA litigation to obtain. So much for the 20 days in the statute.  

In an effort to speed along litigation, attorney Andrew Free is trying out a Motion on the Pleadings. Here's what the litigation looks like to date:

Doc 7 - PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS 5/21/2020 

Doc 7-1 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JUDGMENT ON THE PLEADINGS 5/21/2020

Doc 12 - DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS 6/18/2020 

Doc 13 - PLAINTIFF’S REPLY IN SUPPORT OF JUDGMENT ON THE PLEADINGS 6/23/2020

ICE Officials Knew Dollar/Day Wages Lacked Congressional Authorization

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  E-mail ICE Fought to Keep Secret for Six Years May Clinch Minimum Wage Claims against Private Prisons

For the last ten years I've been conducting research on the history and legality of Immigration and Customs Enforcement (ICE) and its contractors paying $1/day to those in civil custody for work vital to the operation of the detention facilities. 

I've reported on the program's effects on U.S. citizens such as Mark Lyttle and others in ICE custody, the extent of the payments and their contributions to GEO and CCA (now CoreCivic) profits, the first lawsuit filed in Denver, the class certifications, and the positive treatment of these and subsequent cases by judges and appellate courts across the country.  (See other links at end.)

Today, almost six years after FOIA litigation to obtain e-mail behind the program, and following an order by Judge Harry Leinenweber telling ICE its "messaging communications" must be produced,  we now may have a proverbial smoking gun: 2014 e-mail from ICE's Director of the Office of Detention Policy and Planning (ODDP) challenging ICE's reliance on the 1979 appropriations bill for justification of the work program's $1/day wages, first disregarded and then, according to subsequent e-mail in this release, adopted as the agency's interpretation of appropriations policy for the ICE work program.

On May 1, 2014, ICE Director of ODDP Kevin Landy writes:

As indicated yesterday, I question the accuracy of this statement:
[']Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriations standards.[']   Has someone concluded that the 1979 appropriations provision remains binding on ICE in perpetuity?  I don't think that's typically true for language inserted in appropriations bills. 

The subject heading is "NYT materials," presumably prompted by Ian Urbina, who was researching this article published on May 25.  Landy sent it to Barbara Gonzalez in the ICE public affairs office, as well as to other high-ranking officials, including Tae Johnson, then Assistant Director for Custody Management, Enforcement and Removal.  

On May 2, Ian Urbina received a statement claiming the Congressional appropriations standards justifying the work program identical to that proposed on May 1, suggesting ICE's colleagues rejected Landy's analysis.  The paragraph Landy challenged (and Urbina received) states:

Facilities that house the overwhelming majority of ICE detainees provide compensation for participation in voluntary work programs.  Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriation standards. As of April 2014, the majority of those participating in some sort of voluntary work program -- well over 95% -- were provided monetary compensation.

Urbina's article was published on May 24.  

On May 27 at 3:34 p.m. Gonzalez proposed a response to questions from Telemundo, Univision, and Entravision triggered by Urbina's article.  The new statement, cleared by DHS, no longer included any reference to the Congressional appropriations authorization for the program.
 
At 10:39 p.m. that same day, in case one was not clear about the new version's rationale, Gonzalez sent an e-mail stating, "Sir, Per ERO, we struck this part of the background section: 'per Congressional approprations standards." (Emphasis added.)

Crucially, among the recipients was Thomas Homan, who became the acting director of ICE under Trump.  Homan's correspondence with GEO shows him rebuffing GEO's efforts for ICE to cover GEO's legal fees for the class action litigation over the firm's minimum wage and other labor violations, another indication Homan and his colleagues were fully aware that DHS and ICE did not find the 1978 appropriations bill for 1979 appropriations authorized the dollar/day payments for the ICE work program.
 
(ICE redacted the May 2 paragraph on the Congressional appropriations act in its release to me on Friday.  Fortunately, I have a previous FOIA production including the correspondence to Urbina from a prior FOIA request and this paragraph is not redacted; if I did not have this other release, the recent redaction would have made it impossible to document the change between the ICE statement of May 2 that included the 1979 appropriations rationale and the May 27 e-mail revoking this interpretation.)

In short, the release on Friday tells us that in addition to three federal judges, ICE itself since 2014 has rejected the claim by GEO and misleading statements by its own officials about the program's legal authorization in the appropriations act of 1978.  
 
Recently, the State Department's annual Trafficking In Persons report has made note of the litigation (p. 529).  Details on the legislative history of the program and its violations of the FLSA are available here; episodic scholarly publications, reports, and media coverage of the litigation are available via the Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University.  

Thanks to Nicolette Glazer for her fabulous work in drafting motions to obtain the order for these materials to be re-reviewed and unredacted.  And thanks to Andrew Free for assistance in the initial FOIA litigation and brilliant work on the actual class lawsuits now underway.

Finally, none of this would have been possible without research assistance from Matthew Casler, Daisy Conant, Grant Li, Khadeejah Milhan, Caleb Young, and numerous other students who diligently tracked the redactions for us to challenge. Thanks also to the Buffett Institute, Posner Fellow Program, and Political Science department at Northwestern University for their support. 

Stay tuned for more analysis -- trying to upload entire file but server glitch.
6/22 update  -  93 page release now available here. 
Menocal brief from 6/30/2020 referencing new release here.

Updates on ICE Work Program Violations - FOIA Litigation b(5), b(6), b(7) Order and GEO-Karnes TRO Motion

In an order issued on April 8, 2020, Judge Harry Leinenweber (Northern District of Illinois, Eastern Division) ruled that the b(5) predecisional exemption is for policy decisions, not "how to spin its prior decisions":

...ICE’s internal communications about its responses to outside inquiries from the press, Congress, advocacy groups, and the public are not protected by the deliberative process privilege. From the Vaughn index descriptions and a review of the reprocessed supplemental production, ICE merely deliberates over which agency subpart should handle an inquiry and/or how to spin its prior decisions about the detainee volunteer work program and general operation of ICE detention centers. Those communications do not qualify as facilitating/informing a final agency decision or performing a deliberative function specifically assigned to ICE.... 

ICE must show that the messaging communications are so “intimately bound up with [the] agency’s central policy mission” to warrant protection. New York, 2018 WL 4853891, at *2. ICE does not make that showing here.... 

ICE’s Vaughn index descriptions and accompanying declarations do not demonstrate that these communications relate to anything other than rationalizing the agency’s final decisions. Thus, disclosure would not reveal the deliberative process behind not-yet-finalized policy decisions. Some of the redacted portions also appear to be pure facts and data that ICE solicited from its private jail operators. This kind of information is not protected by the deliberative process privilege. Nat’l Immigrant Justice Ctr. v. U.S. Dep’t of Justice, No. 12-CV-04691, 2018 WL 1508531, at *5 (N.D. Ill. Mar. 27, 2018) (citing Enviro Tech, 371 F.3d at 374) (noting the deliberative process privilege “typically does
not justify the withholding of purely factual material”).
(Case 1:14-cv-03305 Document 144, Filed: 04/08/20 Pages 17, 18, 19.)

The judge also rejected ICE's b(6) and b(7) arguments and ordered the agency to unredact the names of ICE officials who participated in these deliberations:

 ICE itself distinguishes between “personnel record files” and the emails at issue here. (Def.’s Reply at 8.) Yet, ICE argues that the names it redacted are protected because they belong to lower level employees. ICE labels these employees as “support staff.” (Id.) Generally, support staff provide administrative assistance to agency managers and would not have job titles like “Deputy Chief,” “Chief of Staff,” “Deputy Field Office Director,”or “Senior Advisor.” (Reprocessed Prod. at Supp. 105, 109, 138, & 299, Fuentes Decl., Ex. D, Dkt. No. 132-1.) Such titles indicate some level of managerial authority. Even if such employees were support staff, ICE overstates the authority supporting these redactions and fails to cite any case binding on this Court or directly relevant to these circumstances. See, e.g., Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010) (upholding redaction of law enforcement and support staff names, among others, from documents related to specific investigations under Exemption 7(C)); Associated Press v. U.S. Dep’t of Justice, 549 F.3d 62 (2d Cir. 2008) (withholding name redactions from a commutation petition under Exemptions 6 & 7(C)). Thus, Exemption 6 does not permit ICE to withhold the redacted federal employee names. As for Exemption 7(C), the Court asks whether these emails were “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). While ICE is obviously a federal law enforcement agency, not every document ICE produces or amasses has been “compiled for law enforcement purposes.” Id. “Courts have generally interpreted Exemption 7 as applying to records that pertain to specific investigations conducted by agencies, whether internal or external, and whether created or collected by the agency—in other words, investigatory files.” Families for Freedomv. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 397 (S.D.N.Y. 2011) (collecting cases interpreting Exemption 7). The documents at issue are not investigatory files.

(Case 1:14-cv-03305 Document 144, Filed: 04/08/20 Page 25-27.)

Many thanks to Nicolette Glazer for her terrific briefing on this and other cases carrying on the litigation Andrew Free initiated on my behalf in 2014, when he filed a complaint to enforce my rights to documents about the contracts between Immigration and Customs Enforcement and the prison firms GEO and then-Correction Corporation of America, now CoreCivic.

GEO Karnes TRO
The FOIA litigation against ICE produced documents from which I quoted and linked in a law review article on the labor and employment law violations by these firms and was used in class action litigation against GEO and CoreCivic.  Federal judges and appellate courts have ruled against GEO and CoreCivic and the cases are going forward.

On April 6, 2020, attorneys filed a motion for a Temporary Restraining Order on behalf of "those subject to the Housing Unit Sanitation Policy (HUSP)."  The motion points out that

The living conditions encourage the rapid transmission of the virus and exposure to COVID-19 throughout the GEO facilities. And yet, GEO’s HUSPs still force Class Members to clean the epicenter of COVID-19’s spread at its facilities—the common spaces. GEO provides no protection to these workers, so they are unnecessarily exposed to COVID-19 because of GEO’s HUSP program. The circumstances call for immediate action to protect the Class Members where their ward, GEO, has completely failed.  5:17-cv-02514-JGB-SHK Document 252-1 Filed 04/06/20, pages 7-8.

Other cases in this litigation continue to move forward, including that of the nation-wide class of those alleging state and federal labor and trafficking law violations in the case against the GEO facility in Adelanto, California.