Wednesday, May 1, 2024

Butler County Jail and ICE Violate Labor and Immigration Laws, Line Official Claims Coffee Packets for Work are "Monetary"

 

 

In 2019 I published records on the work program for those in custody under immigration laws at the Butler County, Ohio jail, as well as my interview with the warden.  The gist is that the program was paying people for work with coffee packets.  The sherriff expressed his view that it was fine for him to employ the same protocols for people in custody under criminal laws for people in ICE custody. 

In reporting on this, I contacted ICE's public relations office.  When they failed to answer my questions about the discrepancies between the programs and the law, I filed an additional FOIA request.

Five years after failing to provide responsive records and four years into litigation, ICE yesterday released some damning emails - 169 pp.).  

6:04 p.m.  


The highlights: ICE confirms the Butler County program was not in compliance; the inspection group erroneously claimed the jail did not have a work program and omitted any evaluation of the unlawful practices; and other jails also were and likely are still out of compliance.

6:12 p.m. (DSM = Detention Service Manager, supposed to monitor compliance)


I'll fill in the details later but wanted to make this available asap.  It is further evidence that the compliance reports are garbage and that ICE knows this.  The good news is that ICE did finally release information underscoring the agency's disrespect for the rule of law.  The bad news is that sitting on it so long -- part of a pattern and practice of violating the FOIA -- deprives the public of real-time accountability, though it may still be quite useful for suing Butler and other jails that violated their contracts and the law.

It also raises more questions about what is going with the DOJ's amicus brief supporting the work program protocols ICE officials internally affirmed to be unlawful.  


Saturday, March 30, 2024

Biden Administration Backs GEO's Unlawful Labor Practices

 

Merrick Garland's DOJ Supports Firms Violating Labor Laws 

                                           source: Tom Willimas/CQ, Roll Call, 2021

The Biden administration's Department of Justice (DOJ) last month filed an historic amicus brief supporting private prisons paying $1 a day for labor to folks who are in custody under immigration laws, legally or otherwise, including U.S. citizens. The filing means DOJ is taking the side of federal contractors found to have violated state and federal labor laws and disregarding rulings by state and federal judges, including Reagan-appointee Judge Robert Bryan in Tacoma, Washington. 

DOJ's filing of February 21, 2024 assists GEO in appealing a 2021 federal jury's award to its Tacoma detained workers of $17.3 million in backpay and an additional $5.9 million in "unjust enrichment" Judge Bryan ordered GEO to disgorge to the State of Washington.  (In 2022, GEO was ordered to pay an additional $14.3 million in attorney fees.)

The DOJ's undermotivated gift to scofflaw GEO Corporation and other defendants also contravenes findings and analyses of federal agencies, including those operating under President Donald Trump, when Immigration and Customs Enforcement (ICE) rebuffed GEO's entreaties to assist and reimburse GEO for its defense.  

Attorney General Merrick Garland's DOJ is asking courts to support a private corporation paying recently arrived migrants, as well as long-term legal residents and U.S. citizens, one dollar a day for work to meet the firm's contractual commitments to the federal government, instead of the legally mandated wages of the Service Contract Act.  (The recent ploy to evade wage acts is in keeping with the Biden administration's bizarre contract language from 2021.)  

And yes, the filing means the U.S. government is on record supporting paying U.S. citizens one dollar/day.  Indeed, it was U.S. citizen Mark Lyttle's 2009 efforts to recoup the $32 owed him by Corrections Corporation of American (now CoreCivic) that first put the practice on my radar.  Thousands of pages I obtained through litigation under the Freedom of Information Act, and reported on by the New York Times in 2014, proved the program was both unlawful and widespread, as was forcing those detained under immigration laws to work for no wages at all, again, regardless of their actual legal status or the fact the firms were obligated by federal acquisition rules, not to mention federal labor laws.) 

Background
Congress in 1950, to come into compliance with the Geneva Convention for Prisoners of War, passed a law authorizing federal immigration centers, then mostly non-carceral residential facilities such as Ellis Island, to pay people an allowance for work performed, "at such rate as may be specified from time to time in the appropriation Act involved."  Shortly after the policy was enacted, Ellis Island closed and there was no long-term detention for people in immigration proceedings until 1981.  

The last time Congress set the work program rate was in 1978.  The rate was no more than $1/day, in an appropriation Act that expired on September 30, 1979. (GEO and DOJ briefs misstate the year of enactment as 1979.)

People in ICE custody are there to guarantee they do not flee prior to their hearings or removal from the United States, not as punishment.  The work programs wardens use for people held in criminal custody is a punitive measure; paying people in civil custody one dollar/day is no more lawful than paying elderly citizens one dollar/day to cook, clean, or buff floors in an assisted living facility.  And tons of case law applies minimum wage protections to those who lack federal authorization to work, a means of maintaining a fair labor market and not undercutting legal wages.

In addition, people in criminal custody are there pursuant to Sixth Amendment protections absent for those ICE custody -- hence the large numbers of U.S. citizens and others with lawful status ICE and often immigration "judges" (DOJ attorneys in black robes) miss. (Briefing on both sides often omits this crucial distinction, important for differentiating ICE custody from pre- and post-conviction criminal custody.)  This is why the Supreme Court in 1896 ruled forced labor unconstitutional for those held under immigration laws. 

The Rule of Law Applies to GEO and ICE
Here's how Federal District Court Judge Robert Bryan, a Reagan appointee, explained GEO's obligations to adhere to wage laws and rejected GEO's whining about discrimination:

The MWA [Washington Minimum Wage Act] is a neutral law of general application and is being imposed on GEO on a “basis unrelated to [GEO’s] status as a Government contractor.” North Dakota, v. U.S., 495 U.S.
6 423, 438 (1990). The MWA is imposed generally on employers in Washington, unrelated to a status as a contractor with federal governmental entities. Indeed, the federal government and GEO contemplated (or should have contemplated) application of the MWA in their contracts.  The 2009 Contract and 2015 Contract between GEO and the federal government require that GEO comply with all “applicable federal, state and local labor laws.” [Cit. omitted] Those contracts further provide that “[s]hould a conflict exist between any of these standards, the most stringent shall apply.”

In other words, GEO's business of holding people while their civil immigration or citizenship claims are adjudicated provides the firm no more legal authority to violate labor laws than it would for any other employer or federal contractor that might assert it should be exempt from violating the state's labor laws.  

The fact that those employed are allegedly not authorized for legal employment is irrelevant to MWA.  And again, many of those detained have work authorization.

A few months after Judge Bryan's order, a federal jury in Tacoma agreed that GEO's work program requirements and the work testified to by the plaintiffs meant the workers met the state's definition of "employees," thus eliciting the awards.   

(Bonus trivia: One of the lead lawyers for the state attorney general was Jamal Whitehead, appointed by President Biden in 2023 to serve as a federal circuit judge in the same courthouse where he beat GEO.) 

Behind the Scenes - GEO/ICE 2018-20

As lawsuits against the private prisons proceeded across the country, and federal judges slapped down their motions to dismiss, the firms ran to ICE requesting backup.  With one exception, ICE turned them down.  

In related litigation, the Solicitor General filed a brief in support of neither party and affirming that the Georgia facility that exploited Mark Lyttle was indeed was covered by the Trafficking Victims Protection Act.  The Eleventh Circuit denied CoreCivic's motion to dismiss and also class certification. CoreCivic and plaintiffs settled in November, 2023.    

In 2018, GEO directly and through Congressional minions attempted to pressure the U.S. Government to file briefs supporting GEO's slaving wages and to pay for GEO's litigation fees. 

In February, 2018, GEO wrote to ICE about the Aurora, Colorado litigation:

The legal discovery costs could total several millions of dollars and potential damages could be in the tens of millions.  Understandably, GEO would need to be reimbursed for all of the costs through an equitable adjustment request to ICE. To date, GEO has expended $1,615,000 in legal costs for which we seek an equitable adjustment.

By May GEO asks ICE fork up to $20 million of taxpayer money to pay GEO's legal fees.  In the same letter, GEO's CEO and Chair George Zoley also begs DOJ to defend GEO:  "We urgently implore DOJ to take over the defense of these lawsuits and reimburse GEO for its costs and claims damages."  

ICE and DOJ rebuff GEO.  On June 21, 2018 ICE denied all of Zoley's requests for contract adjustments and refused to defend the private prisons.  First, ICE pointed out there was no change in the conditions stated in the contract:

This is a firm-fixed price performance-based contract. As such, the risk of performance, including the burden of administering the contract, falls to the contractor. Where there is no change to the contract, whether expressly or constructively, an equitable adjustment is not appropriate.

Second, ICE noted the contract clearly stated that ICE would be reimbursing GEO at one dollar/day, and did not state GEO was obligated to pay only one dollar/day:

Furthermore the award document and contract line item structure set forth the rate of reimbursement for the program. (OF 336, CLIN x004, dated September 15, 2011). Accordingly, the service provider has been on notice about these terms since contract inception, when the performance based contract was negotiated. [Emphasis added.]

Third, ICE's contracting officer in 2018 anticipates a key factor in plaintiff's lawsuit and the Judge Bryan's orders: the contract obligates GEO to all relevant legal standards, not cherry-picked protocols and long-standing unlawful practices the plaintiffs were challenging:

Under the terms of the contract, GEO is required to provide detention
services and ensure compliance with all applicable federal, state, and local work safety laws and regulations. (Contract, Section 11-5 and H-17). GEO's defense of these private lawsuits is a defense of its contract performance.  

The applicable work safety laws and regulations in question are those of Washington State.  

That said, despite ICE's own findings, by August, 2018 an ICE Deputy Chief of the Litigation Division tried to push DOJ to file a "Statement of Interest" in support of GEO's unlawful exploitation:

...As you may remember [REDACTED] previously forwarded requests from ICE to DOJ to file statements of interest in six federal district court cases to inform the courts of significant government interest in cases involving novel issues.

The need to file statements of government interests continues to become more pressing.  Since those prior requests were submitted in October 2017 and January 2018, two more related lawsuits have been filed, and ICE has significant concerns about the potential impact on ICE equities if adverse decisions are entered in these cases.  I am attaching a request from our Acting Principal Legal Advisor for DOJ to to file statements of interest in these two additional lawsuits.

Under Attorney General Jeffrey Sessions and Matthew Whitaker, DOJ did not honor the request.  

2019 - First Shoddy DOJ "Statement of Interest"
AG Bill Barr's DOJ in August 2019 did sign a Statement of Interest, but only in the Tacoma case, above the signatures of DOJ Trial Attorney Christopher J. Lynch, along with AUSA Joseph H. Hunt, Principal Deputy Assistant Attorney Ethan P. Davis, Senior Counsel to the AUSA Christopher A. Bates, Director [DOJ Federal Programs Branch] Alexander K. Haas, Assistant Branch Director Jacqueline Coleman Snead.

The 2019 DOJ brief states, "Although the GEO Group’s contract with ICE specifies that the federal government will pay GEO $1 a day for work performed by detainees, Washington wants GEO to pay much more."  Yes, as ICE told GEO, the $1/day reimbursement was not a cap on GEO's wages for those in custody.

The brief reiterated arguments made by GEO and previously rejected by Judge Bryan, not to mention ICE itself.  (In 2014, ICE officials stated in internal emails that the 1978 appropriations Act provided no legal basis for its contractors' exploitative practices.)
The central arguments are:
(1)  enforcing state laws against GEO is discriminatory, insofar as Washington does not apply its minimum wage laws to those in state custody under civil laws;
(2) that federal contractors are immune from state laws; and
(3) federal enforcement of immigration law pre-empts the state's authority to enforce its minimum wage law.  

Washington is Discriminating against GEO, GEO/DOJ Assert
Most of the 2019 brief is devoted to the argument that by enforcing a minimum wage act claim against GEO and not the state's own work program, Washington is unlawfully discriminating against a federal contractor and hence against the federal government:

By requiring federal detention contractors to pay the minimum wage but relieving similarly-situated state facilities from that obligation, the State accordingly runs afoul of basic principles of intergovernmental immunity that have shielded federal activities from state interference since the Founding. p. 6.

In addition to the claim of intergovernmental immunity, the DOJ in a footnote arguments that the litigation is not only discriminating against the federal government, but also interfering with the federal government's sovereign authority over handling immigration policy, and thus the action is barred by the the doctrine of preemption.

The brief is truly terrible, as though drafted by a GEO attorney.  The key case on which DOJ/GEO relies involves a dispute between the Department of Defense and the North Dakota over the rules for alcohol sales.  DOJ/GEO argue that just as the Supreme Court recognized the supremacy of DOD's prerogative to set the rules for alcohol sales on military bases that conflict with state policies, ICE/GEO have the prerogative to set the wages for people in custody under immigration laws.  

The crucial difference DOJ at no point acknowledges: the disputed federal policy on alcohol sales was operationalized per a law Congress passed and pursuant regulations DOD implementedICE/GEO can point to no current Congressional authority for GEO paying anyone less than either the federal or state minimum wage laws. 

In fact, the DOD relies on scores of federal laws that legalize exemptions from hundreds if not thousands of federal, state, and local statutes, from labor to environmental laws.  Congress could pass bills that accomplish the policy objectives GEO and some in ICE -- those counting on the golden revolving door into a lucrative GEO position? -- prefer.  Congress could pass laws exempting from remedies under our minimum wage laws those without legal authority to reside or work in the United States.  And likewise for health and safety labor protections. But since Congress has not done so -- and indeed the House Appropriations Committee twice passed requirements to fund the program at wages of the Service Contract Act, the authorities DOJ/GEO is citing for its intergovernmental immunity argument are just losers.  

Among the legal and also policy reasons even a Republican-led Congress is unlikely to pass legislation that would accomplish the objectives GEO-ICE-DOJ are pursuing is that many of those participating in the work programs have legal authorization to work in the United States, including because they are U.S. citizens. Moreover, even die-hard conservatives should be reluctant to pile on more profits to contractors who can easily afford to pay legal wages from their currrent taxpayer revenues.

It is obvious from some contracts that GEO is promising ICE it will be hiring people from the community to perform contractually obligated work but then boosting corporate profits by paying one dollar/day to those in GEO's custody.  Financial data revealed during the trial but typically concealed show that the $37.5 million GEO was ordered to pay for back wages, unjust enrichment, and plaintiff attorney fees still leaves GEO able to pay wages from its bloated government fees.  

GEO's own records obtained from information obtained from FOIA requests and court release make this clear.  First, GEO in 2018 estimated that it would cost $155 million to pay minimum wage daily to people nationwide who were performing work while in ICE custody, assuming 33,000 detained each night.  

Second, GEO's claimed net profits* for the Tacoma facility alone were:

2010: $13,204,102
2011: $15,214,358
2012: $9,697,371
2013: $10,788,018
2014: $5,901,703
2015: $11,663,530
2016: $10,575,188

*These figures reflect annual net revenues after paying millions for the bloated salaries of GEO's Chairman George Zoley and others who were directing GEO's resources toward lobbying and rewarding ICE officials with cushy GEO jobs, including ICE's Dan Ragsdale, who made numerous statements during his trial testimony as a GEO employee he knew or should have known were contradicted by DOJ's and ICE's own analyses, and that Judge Bryan's orders effectively discredited.

By better oversight of GEO's Jail Services Cost Statements, ICE can keep costs down and insure the private firms follow federal, state, and local labor laws. 

2024 Brief Convenient Oversight: Private Contractors Differ from Government Providers
Copious case law referenced and created by this litigation, establish that federal contractors simply by virtue of being federal contractors are not immune from state laws unless a federal law or constitutional precedent specifically establishes the immunity. 

DOJ's 2024 amicus brief disregards these rulings, including the findings of a unanimous Washington State Supreme Court issued in late 2023.  

The DOJ brief claims that appling the MWA to GEO's work program "contravene[s] principles of intergovernmental immunity by discriminating against the federal government’s detention operations."  DOJ notes:

“[A] state law discriminates against the Federal Government or its contractors if it ‘single[s them] out’ for less favorable ‘treatment.’” Washington, 596 U.S. at 839 (second alteration in original) (quoting Washington v. United States, 460 U.S. 536, 546 (1983)). Here, as discussed, Washington has exempted its own detention operations from the state minimum wage laws, excluding from the definition of “employee” “[a]ny resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution.” Wash. Rev. Code § 49.46.010(3)(k). Thus, when Washington operates labor programs within its own correctional or other detention facilities, participants are generally paid substantially less than the minimum wage. DOJ Amicus Brief (2024) p. 25.

This assertion disregards the commonsense precedent that upholds the plain text of the state's law exempting certain government-run programs from the wage act.  Again, the text above directly contradicts the recent Washington Supreme Court ruling:

Quoting Calhoun [v. State, 146 Wn. App. 877, 886 (2008)], GEO argues detainee-workers are not employees in the ordinary sense of the word because the work they perform does not provide sufficient “indices of employment.” 146 Wn. App. at 886. Calhoun is unhelpful here. There, the court considered whether the pretrial detainee, who was in custody at a civil commitment center operated by the State, was an employee for purposes of the WLAD. The court specifically noted that the detainee would not be an employee under the MWA because he fell within the government-institutions exemption,
RCW 49.46.010(3)(k). Thus, while the court considered factors such as the
primary goal of the work the detainee performed to decide whether the detainee was an employee, that analysis does not aid the argument that the ordinary meaning or the MWA’s definition of “employee” excludes detained workers.  Nwauzor v. The GEO Group, Inc., No 101786-3, Slip Opinion, Dec. 21, 2023.

The policy rationale for distinguishing between contractors and the government entities at the state and federal level is quite apparent: private firms are profit-driven, unlike agencies.  Thousands of pages of federal procurement regulations reveal a host of different expectations we-the-people have of corporations that differ from our expectations of fellow citizens in the government.  If federal contractors want the same protections as government operations, they need to stop making profits from taxpayer funds.  If courts were to adhere to GEO's arguments they would also need to shred the federal regulations that only apply to private contractors and not government programs. 

ICE and CCA/CoreCivic Violated Federal Labor Laws
In short, DOJ in 2019 was pleading with the Tacoma federal court to let ICE do whatever it wants, wherever it wants, however it wants without being empowered by laws or even regulations. 

When ICE tried to subvert federal labor contracting laws the Department of Labor pushed back.  The DOL in 2015 demanded ICE rewrite its contract with CCA to include the wages and benefits mandated by the Service Contract Act.  

U.S, Department of Labor WAGE AND HOUR DIVISION 230 N, First Ave Suite 402 Phoenix, AZ 85003

Transmitted via email

September 9, 2015

U.S. Department of Homeland Security Immigration and Customs Enforcement

RE: Service Contract Act Clauses and Stipulations Contract No.: DROIGSA-06-0002

Dear Madame,

As you are aware, it has come to the attention of the Department of Jabor (DOL) that the DHS ICE has issued a contract with CCA Tennessee in order to provide all housing, transportation, medical, guard services and food to federal inmates. The DOL has learned that the DHS ICE failed to include the Service Contact Act (SCA) or the Contract Work Hours aud Safety Standards Act (CWHSSA) clauses and stipulations.

The Service Contact Act requires that all contracts over $2,500 that are principally for the furnishing of services through the use of Service Employees to the United States, must include SCA provisions and the appropriate wage determination. Additionally, any contract over $100,000 must incorporate the CWHSSA stipulations as well.

The Department of Labor is requesting pursuant to 29 CFR 4.5(c) that the contract be modified retroactively to the start date of the contract to include CFR Part 4.6 and CFR Part 4.181 in its entirety.

Please advise Wage and Hour Investigations b(5)(6); (b)(7)(C) if your agency’s actions with regard to the ahove- referenced malter within by Friday, October 9, 2015. You may contact |(b)(6); (b)(7)(C) ht 602-407 5)(6), if you need further assistance.

Sincerely,

((b)(6); (b)(7)(C)

Phoenix District Director

2020-ICLI-00042 4734

DOL is telling ICE its protocols and contracts must abide by U.S. federal law.  The real discrimination would be if somehow courts let one agency cut contracts with one industry that evaded federal, state, and labor laws without authorization from Congress, in this case taking the form of an updated statute reflecting the realities of the private detention industry, in contrast with the federal government operations in 1950, AND funding for any new work program.

DOJ Contravenes House Dems Appropriations Committee

The amicus brief also disregards the House Appropriations Committee Acts for fy2022 and fy2023.  The Acts, passed under Democratic leadership, state at Sec. 221:

Not later than 180 days after the date of enactment of this Act, allowances to individuals held in custody under the immigration laws for work performed may not be less than the rates established under paragraph (1) of section 6703 of title 41, United States Code ["The Service Contract Act"].  (And see hearing repts. fy 2022 and fy 2023.)

In fact, the fy 2023 Act prohibited using even the small dollar/day contractor payments. 

S EC . 221. (a) No Federal funds may be used for the purposes of section 6(d) of Public Law 81–626 (8 U.S.C. 18 1555(d)).

(b) Subsection (a) shall not apply if the rate described such section for work performed is not less than the rates established under paragraph (1) of section 6703 22 of title 41, United States Code.

The Acts were not passed in the final Congressional Appropriations Acts, but nonetheless send a signal that today's Democrat Congressional experts have a very different policy position on private prisons exploiting detained labor than than propounded by AG Garland's DOJ. 

Predatory Governance
Especially when many Dems are jumping on the anti-immigrant scapegoating bandwagon, the notion that folks in deportation proceedings should earn legal wages for their work cooking, cleaning, doing laundry, and buffing floors on the midnight to 8 a.m. shift (Mark's job at the Immigration and Customs Enforcement (ICE) contracted facility in Lumpkin, Georgia) might seem a stretch.  But the alternative is far more irrational: a single industry able to exempt itself from the minimum wage laws that protect labor and the labor market from unscrupulous employers.  

In addition to being unlawful on its face, ICE's self-authorized carve out from labor laws feeds massive profits into a taxpayer-funded lobbying machine, the outcome of which are policies that prioritize corporate welfare and not policies that reflect the needs of U.S. voters.  

(In 2009, Congress's Homeland Security committee found private prisons severely deficient in providing care, and more expensive, compared with county jails. Yet somehow the House Appropriations Committee and then Congress passed a mandatory detention that required massive new contracts with private prisons and no new oversight.) 

The Mercurial Merrick Garland
So why is Merrick Garland's DOJ now weighing in for a firm that revealed that in time frames covered by the litigaiton it made a whopping 36% gross profits and 16-19% net profits by not hiring people at lawful wages?  

One possibility is that the DOJ wants to shore up its federalism arguments against Gov. Abbott's Texas policy.  But the Trump AGs pressed the federalism litigation in California to overturn the state's ban on ICE privately run detention facilities, while not weighing in on state's prerogative to regulate their operations.   

There is no policy or legal rationale preventing Garland from asserting federal supremacy when it comes to the insuring the federal government has authority over detention under immigration laws, AND insuring private prisons abide by state and federal labor laws, not to mention their federal contracts obligating this.  

Another motive is the impact the employment law litigation is having on detention contract negotiations.  Biden now is running on a tough on immigration platform.  Toward this short-sighted end, he is seeking to stop the visuals of thousands of new arrivals.  And for this, he needs detention, to keep folks locked up and off the streets, and also as deterrent.  

Along these lines, Biden supported the House Appropriations Act bumping up ICE's budget; House Spreaker Mike Johnson is bragging that it will up detention beds from 34,000 to 44,000, even though there are no line items in the budget to indicate this (or the alleged defunding of NGOs, as NPR astutely reports).  

During negotiations, private prison firms will be pushing back against labor law enforcement, as these cut into their profits.  As a result of the handful of detention firms and the revolving door, ICE is unlikely to push back by insisting detention facilities operate at the same profit levels as other private firms, or even lower, as is often the case with monopsonies.  (No one is forcing anyone to bid on a government contract; if the returns after paying legal wages are not high enough to hold investor interest, then GEO and others are free to go out of business and let the government handle its own detention services, free of grift.)  

The correct legal response would be for Garland to tell ICE to reject the loser legal arguments from the private prisons.  This would push Congress to reform our deportation policies and consider radically diminishing detention under immigration law, alongside opening our borders.  

How to pay for this?  That's the easy part: end corporate welfare and corrupt, bipartisan predatory governance.  The magnitude of the taxpayer health and welfare funds going to corporations like Centene and enablers like insurance official Rep. Lauren Underwood (D-IL), both of which siphon funds from health care into their private coffers, could pay several times over for the needs of poor communities and newly arriving migrants who need resettlement.   (More on budgets and predatory governance up next.)

Regardless of long-term goals and debates, the DOJ amicus brief is a pathetic reminder of how the Biden administration's role in furthering deficits of our democracy and the rule of law.  If he wants to make amends, Garland should withdraw brief immediately and consider reprimands for those whose poor counsel and analyses produced it. 

Thanks to Andrew Free and Nicolette Glazer for their legal representation in my FOIA litigation.  Mr. Free also played a key role in strategizing the class action lawsuits across the country. 
And many thanks to Deportation Research Clinic assistants for their careful analysis of the FOIA documents on which this post and my other publications rely: Addie Fleming, Caitlin Jimmar, Kendall McKay, Aimee Resnick, Gabriel Sanchez, and Julianna Zitron.     

Please cite as: Jacqueline Stevens, "Biden Administration Backs GEO's Unlawful Labor Practices," States Without Nations blog, March 30, 2024, https://stateswithoutnations.blogspot.com/2024/03/biden-administration-backs-geos.html.

Friday, October 6, 2023

Judge Orders Executive Office of Immigration Review to Produce Screenshots and other Requested Records, Fails to Find Fault When Agencies Blow Off Deadlines

Sharing the latest motions and order from FOIA litigation. Main takeaways from Northern Illinois Federal District Court Judge Matthew Kennelly's order of October 2, 2023: 

(1) Agencies cannot refuse to search records systems indicated by a requester without demonstrating the search is burdensome:

Federal agencies vary greatly in their size, mission, the type and amount of information they collect and generate, and their record-keeping practices. A request may be unreasonably burdensome for one agency but easy to satisfy for another. Stevens has argued that EOIR's limited role, combined with the manner in which it organizes its records, means that it could "easily" conduct a search of its "emails, case notes, scheduling, and case administration system . . . by the A- number and/or the name of the non-citizen." Pl.'s Resp. at 8. EOIR, on the other hand, has not argued or provided evidence that it could not do so. The Court therefore finds that EOIR did not make "a good faith effort" that was "reasonable in light of the request" when it searched for only the record of proceedings in response to the Silvestre, Archie, Hoang, and Charpentier requests. Rubman, 800 F.3d at 387. The Court orders EOIR to promptly conduct a good-faith and reasonable search for all remaining records specifically identified in the June 2021 Silvestre request, the August 2021 Archie request, the March 2022 Hoang request, and the August 2022 Charpentier request. 1:22-cv-05072 Document 53, 10/02/2, p. 11.

This order is basically just telling the Executive Office of Immigration Review to do its job.  EOIR for years has produced screenshots, calendars, and outputs from case management systems indicating adjournments without a need for a court order.  Whoever is handling EOIR's FOIA office for these requests decided to make life difficult for the folks who need these records, including a guy born in California and deported to Mexico, as well as the AUSA handling their case, the judge, my attorney Nicolette Glazer, and me.  Whoever is behind this waste of time deserves a performance review noting their stunning waste of agency resources.

(2)   Summary judgement granted - Customs and Border Protection must immediately produce records responsive to my request for information about insurance executive and fake nurse Rep. Lauren Underwood's (D-IL) biometric database bill written at the behest of a federal contractor, seemingly General Dynamics. (Click on Lauren Underwood tag below for more on her role in depriving Cook County's poorest residents the health care she hypocritically claims that she supports.)

(3)  Agencies disregarding FOIA deadlines will not receive adverse orders via summary judgment, according to Judge Kennelly. (A bunch of us in the transparency community find the precedents cited here bad law.)

Will update next week with motions.

Wednesday, July 26, 2023

Court Grants Order in FOIA case for Preliminary Injunctive Relief, Annual Budget Analysis Key to Ruling

      On March 30, 2023, Northern Illinois Federal District Court Judge Matthew Kennelly issued a preliminary injunction ordering Immigration and Customs Enforcement to review at least 1,500 pages/month.  A key rationale for the order was the failure of ICE to account for its refusal to request funds sufficient to maintain its statutory obligations to comply with the Freedom of Information Act:

Although ICE argues that it has received a "dramatic increase in FOIA requests in recent years" and thus "cannot practicably process records any faster," Def.'s Suppl.Mem. at 2, ICE does not respond to Stevens's contention that ICE could have met its FOIA obligations by submitting appropriate budget requests. And it is hard to swallow the proposition that an agency may, by its decisions on how to allocate resources, effectively make FOIA’s expedited processing provision a dead letter. ICE accordingly fails to persuade the Court that granting a preliminary injunction in this case will harm the public interest. See Open Soc'y Just. Initiative, 399 F. Supp. 3d at 168–69 ("DOD's decision to thus far deny itself the technologic capacity to speed its review cannot dictate the Court's assessment of the review pace that is 'practicable' under FOIA.").
Similarly unpersuasive is ICE's vague assertion that any processing rate faster than 500 pages per month risks disclosure of exempted documents. See Elec. Priv. Info. Ctr., 416 F. Supp. 2d at 42 ("Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA
seeks to further—government openness and accountability."). 22-cv-05072 ECF 34, March 30, 2023

 


 

The Order is referencing Plaintiff documention of ICE officials time and time again telling Courts, "sorry, we don't have enough resources to follow the law," but telling Congress "we're good." 

 

Most agencies have a similar track record: telling courts they do not have resources to fund their FOIA operations, while not requesting more funds from Congress. The data on which we relied can be found and used for an identical argument for most agencies. 

Plaintiff documentation of ICE's lapses can be found he    re, including the sources.  (Thanks as ever to my fabulous attorney Nicolette Glazer.)

Postscript - April 5, 2024.  Order is for ICE to review 1,500 pages/month.  After the order, ICE released ZERO pages for several consecutive months, claiming it was reviewing 1,500 pages (without indicating what these were) and finding zero responsive pages.  Attorney did not litigate to push back on ICE assertions.  Case still in litigation. 

Wednesday, October 19, 2022

Health of Cards: Obama Pals Rake in Millions from Obamacare, Chicagoans Suffer


Insurance Executive Lauren Underwood 2018 Campaign Ad
 

The state of Illinois paid a private firm $1.2 billion to cover health care needs of about 55,000 Medicaid enrollees in Cook County. The firm's numerous, glaring, and persistent inadequacies outraged network hospitals.  Enrollees surmounted bureaucratic hurdles to flee the plan. In June of 2020, three years after signing an unusual contract, the company went out of business, leaving health care providers complaining about unpaid bills. Did NextLevel Health Partners, Inc. fail because of COVID and special challenges facing Black entrepreneurs, the explanation of founding CEO Dr. Cheryl Whitaker? Or, was the state's 2020 order declaring NextLevel insolvent and on notice for legal proceedings the fault of a few investors and officials prioritizing their own salaries and profits over paying those providing health care?     

The harm and death attributable to our country's public health crisis are of enormous magnitude, arguably greater than those caused by street crime and police brutality combined.  If you doubt this, read The Death Gap, a book about health inequality in Cook County. 

In 2022, Illinois will spend over $30 billion on Medicaid contracts alone, a quarter of the state's budget. Yet these outlays are not improving Illinoisans' health. Operating behind a smoke screen of jargon and complexity, corporate officials get away with harmful, even fatal outcomes that are as predictable as they are preventable, the arguably unlawful and thus unjust enrichment of firms like Centene normalized as "profit," not unlike how private prisons have been unlawfully enriched by illegal labor practices.

If you've read even this far, give yourself a pat on the back.  Words like "Medicaid" and phrases like "managed care organizations," "managed care plan quality," and "service utilization" torture the English language.  Comprehension of the forty pages of definitions and acronyms typical of government Medicaid contracts is so brain-numbing as to incentivize full comprehension only for those most passionate in their pursuit of the immense wealth such expertise makes possible. Performing an appendectomy seems so much easier, and, for those at the top of the jargon learning-curve, far less lucrative. 

By not paying health care bills, the bloated health insurance sector continues to expand, driving doctors to despair and often out of medicine.  Essays here in the next few weeks will explain how and why money that was supposed to go to health care could so easily be diverted to Whitaker and other NextLevel officials, including Rep. Lauren Underwood (D-IL)-- who ran for office while NextLevel's senior director for strategic and regulatory affairs -- the problems this causes for health care and our political system, and propose some short and longer-term solutions. Thanks in advance for hanging in there.  

Part 1
In August, 2017 the Chicago Tribune published a rare article reporting on the billions in state contracts going to private health insurance firms managing Medicaid funds. A firm called NextLevel Health Partners, Inc. had not been selected. That made sense. NextLevel had been repeatedly sanctioned for its failure to submit data to allow oversight of its enrollees' health and the integrity of NextLevel's plan management.  Illinois Health and Family Services (HFS) in 2017 had informed NextLevel CEO Dr. Cheryl Whitaker that the firm's failure to account for 28% of enrollee health provider encounters that quarter was well above the already generous 10% wiggle room.  NextLevel was fined $50,000.     

The contract's more substantial guard rail for flagrant violators like NextLevel was automatic cessation of assigning new members to the plan. NextLevel received a letter imposing this sanction as well. In fact, NextLevel received sanction letters for all quarters for which it was evaluated in 2017.

No wonder the firm wasn't going to obtain a new contract and expand its operations.  

And yet, well, this is Illinois. Cheryl Whitaker and her husband Eric, no stranger to financial controversies with public money, vacationed with the Obamas. When Lauren Underwood left her position as a political appointee in the Obama administration's Department of Health and Human Services, Cheryl Whitaker hired Underwood as the firm's senior director for strategic and regulatory affairs, a position Underwood held while she was campaigning for her current job in Congress, the same time frame of NextLevel failing its regulatory obligations.  

In 2018 Underwood, with massive backing from the corporate wing of the Democratic Party, flipped a red district and was elected to represent Naperville in Congress.  Throughout the campaign, Underwood's marketing machine, aided by a curiously uninterested press corps, had stunning success in brazenly misleading voters as to her true vocation as a corporate hack, not a working nurse.  

Underwood also failed to disclose her full salary from NextLevel, in violation of House Ethics rules.  Underwood and her press office did not respond to queries from reporter John Washington and me about her false statements filed with Congress.  Only after The Intercept published our article highlighting Underwood's transgression did she submit a new form revealing her 2017 NextLevel employment and higher salary, though questions still remain.  (Underwood has not responded requests for interviews going back to 2019.)

Meanwhile, Underwood's talents directing strategy seem to have paid off. In 2018, the spectacularly undeserving NextLevel landed a jackpot contract.

While punishing for physicians and enrollees, Medicaid contracts can be quite lucrative for the corporate honchos who administer them. Firms obtain reliable revenues from the government, with interest guaranteed on any late payments. Members are automatically enrolled, so no need to to advertise. And if firms think they've underbid for coverage, they can just go back to the state and they'll earn more, at least in Illinois, even though this defeats the stated purpose of Obamacare's insurance privatization.  

Also, Medicare, which handles coverage for more many high income seniors, enforces a 15% ceiling on administrative overhead.  Yet for no good policy reason, Congress has not capped Medicaid's administrative overhead.  So, no set limits in the salary for Whitaker. (Some states enforce a 15% administrative cap for Medicaid contracts.  Illinois is not among them.)

In 2018, the Tribune did not cover the HFS "Supplemental Notice" for a new Medicaid contract with NextLevel, one on which private firms could bid only if owned by minorities, women, or persons with disabilities.  Nonprofits also were barred from bidding, including the one handling then handling Cook County residents the new contract steered to NextLevel. 

Indeed, the only existing insurance firm eligible to bid at the time was NextLevel.  The Request for Proposal limits drew vehement objections from the Comptroller, concerned the narrow pool might decrease the quality of the plans and increase "health care costs as a result of decreased competition.” The fewer firms bidding, the more the state would have to pay the winner and the less leverage the state would have to insure funds went to health care not Whitaker's own bank account. 

The Comptroller in the spring of 2017 also noted that HFS had "remove[d] the procurement from the independent review afforded by the Chief Procurement Officer," and was "claiming exemption from independent oversight."  The HFS rules thwarted "adequate scrutiny of conflicts of interest," the Comptroller pointed out.

HFS brushed off the criticism and went ahead.
 

Throughout 2018, Whitaker's firm persisted in its failure to comply with reporting and other requirements. And, HFS persisted in enabling this, "funneling more people into the Medicaid managed care plan with the highest turnover and lowest scores on state quality measures," Crain's Business reported in October, 2019:

The Illinois Department of Healthcare & Family Services sends 35 percent of new Medicaid enrollees who didn't request a particular plan to NextLevel Health... NextLevel gets all those new customers despite poor quality grades and high rates of defection among its current members.

Reporter Stephanie Goldberg further noted, "The plan finished last in the state's latest quality survey, which rated NextLevel 'low' or 'lowest' in five of six performance metrics. Meanwhile, NextLevel lost customers at twice the rate that patients left the program overall."

Once NextLevel's and HFS's malfeasance was reported, HFS might have been expected to apologize, and promise that Illinois residents deserved better.  That would make sense.

Instead, HFS Director Theresa Eagleson defended NextLevel and the contract for its support of minority-owned businesses that "reflect the diversity of our Medicaid membership."

Eagleson told Goldberg, "We were trying to, because they got a late start, help make sure they had the ability to be successful." Taken at face value, Eagleson was saying that the 30 year death gap between Chicago's Gold Coast residents, who can expect to live to 90, and those in neighborhoods served by the community hospitals left understaffed in part from NextLevel not paying its bills, were not her concern.  

Eagleson's misunderstanding of how government might improve public health and thwart injustice is toxic and not uncommon. Eagleson is the top officer in Illinois in charge of funding health care. Congress and the federal government have developed extensive protocols for how to control expenditures for those unable to afford private health care, so that taxpayer funds enhance the public's health, not corporate slush funds. Those protocols are behind the sanctions imposed on NextLevel. Yet Eagleson thought it reasonable to say in public that she was more concerned about protecting bloated payments to a few African-American officials running NextLevel than the health care of 55,000 residents of Chicago, most racial minorities, who depended on NextLevel for the proper management of their health care.  

Still, Eagleson's rationale for enrolling people into a firm providing substandard health support, injurious in itself and offensive for the gall to state it publicly, is more palatable than the truth.  Whitaker was no health insurance newbie.

Whitaker in 2015 was an “operating partner” of Harthaven Capital Partners, a firm whose trademarked motto was “At the intersection of Wall St. and Healthcare.”  Three other individuals on Harthaven’s 2015 “Leadership Team” also had investments in NextLevel.  One of them was Michael Kinne, a White, male official of  Fortune 50 Centene subsidiary, and someone who also happened to be a NextLevel investor, promoter, officer and co-owner of an company with Whitaker organized in 2013 to attract state healthcare contracts, especially those for Medicaid.

In addition to being organized and run with Centene personnel, no newcomers to state Medicaid contracts, NextLevel had landed a $30 million loan from Centene, the firm that later took over NextLevel's contracts.  (Centene has been repeatedly sued for fraud and anti-trust violations, to be discussed further when we look later at what happened behind-the-scenes of the 2020 membership transfer and Centene's overall settlement-as-part-of-the-cost-of-profiting-from-taxpayer-money strategy.)

Eagleson and Whitaker alike both understood that the contract, especially as supervised by HFS, provided little incentive for NextLevel to accurately report its data.  $600,000 in fines was chump change relative to the hundreds of millions of unaccountable taxpayer funds NextLevel was hauling in. 

Eagleson also knew that HFS protections for the firm being minority-owned were already baked into the limited competition for the bid and the cushy 20% administrative payment allowance, 25% higher than the cut-off the federal government advised. And, Eagleson knew Whitaker was no new-comer to Medicaid, and indeed was on an HFS committee that coordinated health care policy.  What Eagleson left unmentioned was that NextLevel's noncompliance was a feature not a bug of the HFS contractual incentives.  

One might have expected Eagleson's colleagues to take umbrage, especially those tasked with prioritizing the health of Illinoisans, not friends of the Obamas. That would make sense. Yet when Medical Director Arvind Govyal read the article, he forwarded it to his boss Eagleson and wrote, "Great Quotes Director!"  

***
On June 5, 2020, Whitaker announced NextLevel was going out of business. "Insurance is a very capital-intensive business," Whitaker said in her release, "COVID-19 has exacerbated the difficulty of black-owned businesses to access capital."

Whitaker's announcement hid the real reason for the company ending operations.  The State of Illinois was suing the firm so that it would be run by the Department of Insurance (DOI), the possibility of which Whitaker had been on notice since at least March, 2020.  According to the second order, sent in May, NextLevel's own annual statement "reports that it is insolvent by an amount of ($2,794,769) as of December 31, 2019."  The DOI noted that NextLevel was "operating in a manner that could lead to, or is in, a financial condition, which, if continued, would make it hazardous to the public, and its policyholders.”  DOI specified obligations for NextLevel that, if not followed, could result in penalties and the DOI intiating proceedings for the conservation, rehabilitation, or liquidation of the Company. The order was based on revenues and outlays that long predated the pandemic.

On June 3, 2020, the Illinois Attorney General went ahead and filed a complaint requesting the court order NextLevel be removed from the control of Whitaker and other officers and placed under the control of the DOI, on the grounds that "NextLevel is statutorily insolvent; a situation which justifies the entry of a court order for the conservation of NextLevel."  In other words, Whitaker and other top officials could not be trusted to run NextLevel. "The Director further alleges that, not only is it the case that the interests of creditors, policyholders or the public will probably be endangered by delay, the facts alleged support a finding that the interests of creditors, policyholders or the public will be endangered by delay" (emphasis in original). 

The Complaint was filed under seal and has not been previously reported in the media.  Whitaker, perhaps believing that the information about the true reasons for the firm's demise would remain under wraps, blamed the failure on COVID and her race, the very attribute that won her and her White business partners the contract in the first place. 

Questions about discrepancies between the circumstances of NextLevel's insolvency and Whitaker's public statements, the amount she took home from Medicaid contracts, the nature of the work performed by Lauren Underwood, and discrepancies between Whitaker's Declaration claiming the takeover by Centene was conducted at "arms length" and the overlap of Centene and NextLevel officers and promoters sent to an email address Whitaker is known to use went unanswered.  The email, however, was forwarded to NextLevel attorney Stephen Schwab.  Schwab did not respond to my questions, but he did threaten me with a contempt of court proceeding if I published certain documents that were in the public record after being ordered sealed.  (The DOI Order is not among these.)


TO BE CONTINUED

Thanks to Douglas Lee, Political Science Department Farrell Fellow, class of 2025, Northwestern University. Douglas provided extensive research and analysis for this report. Thanks also to Farrell Fellow Lorenzo Garcia, class of 2024, for his more recent contributions to our analysis of NextLevel's stupefying contracts.      



Friday, April 22, 2022

ICE Letter Destroys GEO's Ninth Circuit Appellate Claims

 

                          ICE to GEO, June 21, 2018


Last fall, a federal jury found GEO's practice of paying one dollar/day for work performed by those in their custody under immigration law violated the Washington State Minimum Wage Act.  The jury calculated GEO owed the workers $17.3 million in unpaid wages.  A few days later, Judge Robert Bryan announced GEO needed to disgorge an additional $5.9 million to the State of Washington for its unjust enrichment going back to 2005. 

Last month, GEO submitted its appeal to the Ninth Circuit.  It tracks legal arguments Judge Bryan found unpersuasive, including GEO's claim that it was operating at the behest of the federal government. GEO is asking the appellate court to consider:

1. Does the WMWA require GEO to pay the State’s minimum wage to federal detainees participating in the Voluntary Work Program (VWP)?
2. Assuming Washington law requires paying federal detainees the minimum wage, does it violate the doctrine of intergovernmental immunity because it impermissibly discriminates against the Federal Government or because it directly regulates federal activities?
3. Assuming Washington law requires paying federal detainees the minimum wage, is it preempted by federal immigration law?
4. Assuming Washington law requires paying federal detainees the minimum wage, does it violate GEO’s derivative sovereign immunity?
5. Is GEO liable to the State for unjust enrichment on the ground that detainee participants in the VWP received payment of $1 per day?

Judge Bryan found that the Immigration and Customs Enforcement contract reimbursing GEO one dollar/day for those paid in the work program meant ICE would be reimbursing GEO for this program at the rate of one dollar/day, not that this was legal rate for paying those in GEO's custody.  

GEO is hoping it can persuade the appellate court that it was just doing what ICE told it to do, and so GEO can derive immunity from state laws.  But several letters ICE sent to GEO in 2018 make it clear that ICE read the contract the same way Judge Bryan read it. 

A while back ICE released a letter of June 21, 2018 rebuffing GEO's request for equitable adjustment to its contracts in order to cover legal fees and possible payments of wages to its detained workforce.  The line at the end revealed this information but the analysis behind this was redacted

My attorney Nicolette Glazer and I pushed back and today we received the letters in their entirety.  ICE is providing GEO the same legal analysis they encountered in Judge Bryan's orders.  In three separate letters for GEO's facilities in Aurora, Colorado, Tacoma, Washington, and  Adelanto, California, respectively, ICE gives the same three reasons for rejecting GEO's request.

1.  GEO did not demonstrate any change to the contract since they signed it: "This is a firm-fixed price performance-based contract. As such, the risk of performance, including the burden of administering the contract, falls to the contractor. Where there is no change to the contract, whether expressly or constructively, an equitable adjustment is not appropriate."

2.  The performance specifications and standards are not "incomplete" and are not defective. The Contract, as awarded in 2011, included a requirement to house detainees and perform related detention service in accordance with the Performance Based National Detention Standards (PBNDS). (Contract, Section H-5, item 10.). Specifically, the contract is clear about the terms and conditions of the Voluntary Work Program. The PBNDS outlines the purpose, scope, and expected outcomes of the program (PBNDS 2008 at Part 5, § 33 and see PBNDS 2011(2016 Revisions) at Part 5.8, as incorporated in Mod P00026).  Furthermore the award document and contract line item structure set forth the rate of
reimbursement for the program. (OF 336, CLIN x004, dated September 15, 2011).  Accordingly, the service provider has been on notice about these terms since contract inception, when the performance based contract was negotiated.

3.  GEO's legal fees and expenses are not cognizable costs under the contract terms or under FAR 31.205-47. Under the terms of the contract, GEO is required to provide detention services and ensure compliance with all applicable federal, state, and local work safety laws and regulations. (Contract, Section 11-5 and H-17). GEO's defense of these private lawsuits is a defense of its contract performance.

Two portions of this are especially important.  First, ICE parses the contract the same way that the plaintiffs and judge read it: GEO agreed to run a work program (pt. 2) and agreed to "ensure compliance with all applicable federal, state, and local work safety laws and regulations" (pt. 3).  In the trial GEO claimed the contract exempted it from state laws, but it's clear here that ICE lawyers disagree.  

ICE is not making this call on its own.  Communications here and in another recent release indicate that ICE had been in touch with the Department of Labor.  Bottom line: even the Trump administration couldn't save GEO.  (GEO could of course continue to insist that ICE forced GEO to pay those in ICE custody one dollar/day; but if the agency you claim is making you do something illegal denies this, and the contract does not actually state this, that's going to be a tough sell to a judge.  Also, did GEO inform shareholders that the federal government rejected its legal defense of the work program? Pretty sure they did not disclose this.) 

As more pieces of the work program puzzle are laid out, including staffing plans recently received for a different facility, it is becoming clear that GEO was paying those in their custody one dollar/day for the work GEO told ICE was being done by full-time employee and then pocketing the difference.  

In addition to questionable staffing plans for facilities I recently recieved, the most conclusive evidence is the paltry sum of $10 million/six months assessed last summer by the House Appropriations Subcommittee on Homeland Security as sufficient to cover the increase between current dollar/day/worker for all facilities across the country and wages paid under the Service Contract Act (SCA).  The rates of the SCA are far higher than minimum wage; for certain skilled labor more than $100/hour.  If GEO is telling the government that it is already paying these rates for staffing, then it cannot justify further increases. 

GEO told the Tacoma jury that if ICE were obligated to pay the much lower minimum hourly wages the increase in overall expenditures would mean that if GEO kept constant its profit rate, its absolute profits would increase.  GEO's attorneys and witnesses dared the jury to find them guilty so that ICE would need to pay them more and bill the U.S. taxpayers, i.e., the jurors. 

Anyone in the court room paying a little bit of attention, and especially the diligent jurors, had noticed that GEO could easily pay increased labor costs from its $18 million annual profits from the Tacoma facility.  As GEO has had work performed at these higher rates either by those in communities adjacent to the facilities or those in GEO's custody, the firm will be receiving a small increase in funds from the federal government.  However, if the labor laws are enforced, the money will be going to those doing the work GEO contracted to perform and the profits will be substantially reduced. 

If the outcome leaves ICE jails in place and paying more to the local work force, detained or otherwise, then the litigation will not have advanced the policy goal of thwarting deportations.  But if banks and financiers no longer find this a lucrative sector, then there is no reason for them to lobby for minimum bed mandates and more ICE prisons, and the deportation laws that keep them filled and degrade all of us.  

Thank you to the Deportation Research Clinic research assistants for 2021-22 at Northwestern University whose hard work drafting FOIA lawsuits, coding, reviewing redactions, and uploading documents make it possible to unveil an important document ICE tried mightily to withhold: Farrell Fellow Lorenzo Garcia, Minji Kim, Grant Li, Kristi Park, and a special thank you to Farrell Fellow and Eva Jefferson Paterson Fellow Caleb Young, class of 2022.    

Friday, March 4, 2022

Evidence of ICE Pattern and Practice of FOIA Non-compliance


 

 ICE Tracking Us

Perfect Citizen: US to set up secret 'Big Brother' surveillance system to  monitor internet for cyber-attacks | Daily Mail Online


ICE Tracking ICE

Office Photos ~ 1930s-1950s

ICE's failure to comply with the mandatory deadlines of the Freedom of Information Act is a feature not a bug of an agency that chooses to fund programs to collect information about the public while refusing to fund programs on how the agency itself operates.  
 
ICE internal spreadsheets show that in 2016 - 2021 ICE spent less than 1/10th of one per cent of its budget on its statutory FOIA obligations.  
click to enlarge
The first column sums the "General Expenses," almost all spent on contractors.  The second column sums salaries for ICE's FOIA employees.  
 
The Excel spreadsheet from which these numbers were calculated were produced pursuant to litigation: Jacqueline Stevens v. Immigration and Customs Enforcmeent 1:21-cv-2232.

The data here could be used in FOIA litigation to show ICE has a pattern and practice of violating the FOIA by consistently failing to solicit and spend  funds necessary to fulfill its FOIA mission.  For instance, in a 2018 affidavit an ICE FOIA officer acknowledges the agency did not spend funds sufficient to comply with its mandatory FOIA obligations and suggests the problem will be remedied.  

ICE budget requests along with these expenditures reveal an ongoing pattern of ICE knowingly avoiding eliciting funds necessary for its mission.
 
Similar information can be obtained from other agencies.  The FOIA question that elicited the production is here:

  

Click to enlarge

Thanks to Northwestern Farrell Fellow Caleb Young for research assistance.