Thursday, September 2, 2021

ICE, Increase the Real Intelligence Budget!

 

"Planned Activities: Respond to all media, NGO, educational, commercial and individual FOIA requests within the statutory time limits..." From fy 2016 ICE budget


"Don't ask and ye shall not receive."
- FOIA budgeting muse

I was talking with some colleagues today about the well-known problem of Immigrations and Customs Enforcement and other agencies telling requesters and courts that they cannot comply with mandatory Freedom of Information Act  deadlines because of equipment and staffing shortages.  And then the same agency tells Congress in their budget proposals, "Hey, nothing to look at here.  We've got our FOIA operations covered."  

Usually agencies ask Congress for more funds for their programs. What's up with this?  

Of course, ICE's daily mode of breaking the law benefits not one whit from misconduct being revealed.  If ICE had its druthers, I'm guessing it would request $100 billion to run drones to sweep up data on every person on the planet, and its FOIA budget would be "0." 

Congress passed the FOIA in order to deputize citizens to expose agency activities to sunlight necessary for oversight and policy changes.  There have been numerous episodes in which Congressional letters to agencies have gone unanswered but nonprofits and citizens have ferretted out the requested information through their FOIA litigation, especially during the Trump administration.  

The problem with the FOIA budgeting goes to the overarching need for the FOIA in the first place: agency officials make bad decisions, sometimes even ones that are illegal, and they want to keep these secret.

Why would Congress or anyone else think that the very agencies whose top officials are breaking the law would be requesting funding to support a program that effectively reveals their waste, fraud, and unlawful violence?  

A few FOIA lawsuits have been calling out ICE and US Citizenship and Immigration Services on this point. (TRAC's Sue Long at Syracuse University has been a tireless and productive trailblazer.  You can find their cases here and other cases on the incredible FOIA Project case locator.)

A few docs illustrating ICE's budget game can be found in the record of Civil Rights Education and Enforcement Center v. United States Department of Homeland Security et al. 1:18-cv-00302-JLK.  

Here are filings about the budget and ICE's misrepresentations:
Declaration of Catrina Pavlik-Keenan (2018) - She says she has been the director of the ICE FOIA office "since that office was created on December 18, 2006" (1).  (Fwiw, ICE was founded in 2003.) Anyway, she says ICE cannot process the documents as mandated by the law because it lacks the resources.  

Plaintiff Response (2018) - The plaintiffs pull a screenshot from the fy2018 budget and note, correctly, that "the current level of FOIA requests being received by ICE was both predictable and in fact anticipated. Yet the 2018 Budget request makes no mention of any funds needed or requested to address the anticipated increase in the number of FOIA requests" (4).

Plaintiff Motion for Sanctions (2019)  

The fy2018 budget on which CREEC relies does not specify funds expended.  

But other ICE budgets do give us a peek at what's going on.  (DHS budget page, through fy2022.)   

The fy2019 budget has information tied to new House accounting requirements that are requiring ICE to break out expenditures it otherwise does not report in its budget request to Congress.  It looks like of the $6.7 billion Congress appropriated for ICE in 2017, ICE spent just $6.45 million on FOIA operations.  (I agree.  That seems SO low; if anyone has another way of reading page 24 of the pdf, let me know.  The page is reporting figures for programs that going forward will be relabelled, to help budget wonks figure out what's happening when the columns move.)   

 


Otherwise, the FOIA operations are not broken out from the overall "mission support" category, which includes as well fire arm training.

Submitted for

fy 2022 - asks for four more employees/ $782k more for its ongoing FOIA/Privacy Act work.  Does not state amount spent in 2021. (p. 39,pdf).  On the next page, ICE tells Congress to budget $123k less than the previous year, due to one-time ("non-recurring") savings.

fy2021 - The document indicates that in fy2019 mission support included 2,210 total employee and spent  $1,091,898, and that in fy 2020, mission support included  2,210 employees and sent $2,092 $1,271,110.

fy 2020 - "Select Mission Support staff will be dedicated to resolving 86,320 FOIA in FY 2020, a 37% increase from FY 2018" (p. 49 pdf).

fy 2019-  This is the proposed budget that shows enacted budget of $6.45 million for iCE in 2017 (p. 24) and proposed increases to $9.627 million for 2018 and 2019.

fy 2018 -  " As depicted in the graph below,the number of FOIA requests fulfilled in FY 2018 is expected to triple from FY 2014 levels. Higher productivity is attributed to a growing workforce and implementation of new software" (p. 62, pdf).




fy 2017 - pt ii, p. 10. For the section including FOIA officers there are many other requests for increases, but no request to increase funding for FOIA requests: 
An increase of $16.1 million and 4 full-time equivalents (FTE) for the Headquarters (HQ) Managed IT Program to support  critical and long overdue improvements in Identity, Credentials, and Access Management (ICAM), cloud support, and system bandwidth. Funding will support an additional eight personnel (4 FTE) to ensure 24/7/365 availability and to meet
the cybersecurity needs of ICE IT systems, infrastructure, and services. p.10 pdf
fy 2016p.1435 Program Change Requests

"Changes ICE requests program changes for the Salaries and Expenses appropriation in the following key areas:
• Increase in new attorney positions…………………………...….….$36.5M (197 FTE)
The request will provide funds for 82 attorney positions requested in the October 2014 Technical Assistance and 282 new attorney positions. OPLA requires additional attorney resources to meet its increasing workload driven by recent increases in the number of Department of Justice (DOJ) immigration judges (IJs) and ongoing southwest border surge operations as well as additional requirements anticipated as a result of an increase in Freedom of Information Act (FOIA) requests and appeals. These additional positions are expected to decrease the average length of stay of detainees by 14 percent.

Increase in Detention Beds to 34,040 [😕] …….…..………………....$435.392M (0 FTE) To meet operational needs to detain and remove both criminal aliens and recent border entrants, ICE requests an increase in the overall funding for beds to meet operational needs. The proposed increase will fund 31,280 adult beds at an average rate of $123.54 and 2,760 family beds at an average rate of $342.73 from ICE’s discretionary appropriation and fees." 

p. 1438 - "Increase of $482 thousand for annualization of the FY 2015 FOIA enhancement.' 

p. 1441

FY 2016 Planned Activities - "In FY 2016, ICE will"
 ....

One more broken promise...

 ICE did ask for 6 more FOIA employees. Not clear what happened (p. 1583)


 

Tuesday, June 8, 2021

GEO Making 33% Profit at Tacoma Facility, Possible Violation of Federal Acquisition Regulation - UPDATE: 36.79%!

 Bag cat stock vector. Illustration of whiskers, face ...

 

Day 6 of Jury Trial on GEO's Exploitation of Detainee Labor in Tacoma: Details of Super Profits Released

The first big financial reveal was when GEO's Associate Warden for Finance and administration  testified under oath that the annual profits for GEO at the Tacoma Northwest Detention Facility range between $18 to 20 million

The monthly invoice he was testifying about was $4.5 million for housing those waiting for their immigration case outcomes, and additional funds for transportion, for a total of about $5.1 million per month, or  annual profits of 29% to 33%

In the afternoon, Chuck Hill, the guy who handles GEO's budgets for the entire Western district explained a Powerpoint he'd produced in 2014.  It  showed GEO's revenues of $53,329,447 and profits of $19,621,970.  

The table Hill created, and plaintiff attorney Andrea Brenneke shared with the jury, showed profits of 36.79% in 2013.  

Hill took issue with the characterization of this number as "profits" but referred to it instead as the "gross operating margin," and pointed out that it did not take into account GEO's expenditures on financing, i.e., the payment to its bond holders. 

Once we deduct this, then GEO's net profits in 2013 were reduced to 19.92%.

The attorney showed that in most recent years GEO, AFTER it paid its lenders, was still making 16% to 19% profits from its contracts for the Tacoma facility.

Q and A:

(1)  Can GEO budget in its contract taxpayer money to be spent on interest payments and financing?  

A. No. FAR 31.205-20

"Interest on borrowings (however represented), bond discounts, costs of financing and refinancing capital (net worth plus long-term liabilities), legal and professional fees paid in connection with preparing prospectuses, and costs of preparing and issuing stock rights are unallowable."

(2) Okay, so is it legal GEO able to earn massive profits, and spend from these profits, what Mr. Hill called the "gross margin," on GEO's financing?

A.   No. FAR 15.404-4

"C) For other cost-plus-fixed-fee contracts, the fee shall not exceed 10 percent of the contract’s estimated cost, excluding fee."

GEO's legal strategy defending against the wage claims is to lie.

Lie #1  GEO is meeting all their contractual obligations without depending on the detainees to do any work.  GEO's marching in their officials and officers to say that GEO guards are cleaning and doing laundry and the detainees may once in a while pitch in because they feel like it and want to help out with cleaning where they live.  (And working in the kitchen gives them an opportunity to leave their pods.)

Their testimony is contradicted by the plaintiffs themselves, who are telling the jury that they are not working to avoid boredom but earn money.  A former GEO kitchen supervisor from 2009 - 2012 now performing similar duties at a nursing home confirmed their accounts.  So did the pay sheets plaintiffs introduced into evidence.  They showed dozens of workers in the dinner shift, not just a few.    

Lie #2   GEO's attorney in his opening statement said the rate was set in 1979.  Today GEO's Ryan Kimble said he saw the one dollar/day rate in a 1979 Congressional continuing resolution.   This makes it sound as though GEO is just following the payment schedule for the work program that Congress wants ICE to follow and that ICE in turn is obligating GEO to use.

At some point the plaintiff attorneys will point out that the first time the dollar/day rate was set was 19501979 was actually the last time Congress set a rate, and the bill Kimble claimed to have seen clearly states that Congress's appropriation at that rate ended on October 30, 1979

To be continued... 

C17-5769-RJB, Nwauzor et al. v. GEO Group, Inc. & C17-5806-RJB, State of WA v. GEO Group, Inc. The Complaint is here.

Friday, May 7, 2021

Northwestern University Doubles Down on Sleazy Athletics Deals

 NU to Promote Guy Charged With Cover-up and Files Motion to Dismiss Trafficking Complaint

A few months ago a former Northwestern University cheerleader sued NU, alleging violations of Title IX and the Trafficking Victims Protection Reauthorization Act (TVPRA).  On April 30, 2021, NU submitted its memorandum on behalf of a motion to dismiss.  

NU's brief is not answering the charges but arguing that Hayden Richardson's complaint is legally deficient, i.e., that even if everything she claimed were factually accurate, NU has violated no laws.  One argument is that the complaint is not sufficiently specific about the mechanisms of inducing payments to NU in exchange for the pimping of its students:
Plaintiff does not allege anything of value was given or received on account of the fans’ alleged inappropriate touching of the cheerleaders. The Complaint is devoid of any allegations that donations were, in fact, exchanged, and Plaintiff does not (and cannot) allege that any other thing of value was given or received as a result of the inappropriate behavior. Rather, Plaintiff alleges she was touched or groped by fans at tailgating events and by patrons at a bar (who may or may not even be affiliated with Northwestern in any way). (Compl. ¶¶ 59, 68, 77–78.) Plaintiff does not assert that Northwestern received an alumni donation or grant, much less that any Defendant received any benefit of any kind, because fans and bar patrons groped Plaintiff.
NU argues further that when Congress passed the TVPRA it had in mind contexts closer to sex slaves than college students' scholarships: 

Congress intended the threat of harm to be serious, involving cases “where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence.” [Citations omitted]

NU in addition cites to case law in which judges have succumbed to the branding of nonprofit universities and afforded these high status institutions deference less likely to be available if places like NU and other members of the National Association of College and University Attorneys pursued these actions on behalf of their true masters: the titans of firms like Abbott Laboratories, Boeing, General Dynamics, General Electric and Halliburton whose past and current officials run NU.


Analysis of parts of NU's Motion to Dismiss
I'm posting about this particular complaint on the States Without Nations blog because as the founding director of the Deportation Research Clinic, I have closely followed class action employment litigation against private prisons that have proceeded under the same law Richardson is using to sue NU. Indeed Clinic research has been credited with initiating the litigation.  So I know that judges apppointed by Republicans and Democrats alike have denied motions to dismiss forced labor claims based on imputations of legislative intent.  

Relying on the letter of the law, federal judges and appellate courts in Colorado, Washington, Georgia, California, and Texas have told GEO and CoreCivic that even if Congress did not specifically envision people detained under immigration laws suing the firms for fraudulently or psychologically coercing them to work, these firms were indeed covered by 18 U.S. Code § 1589 and would need to answer complaints thus charging them. Indeed, writing for the Fifth Circuit Appellate Court, James C. Ho, a Trump appointee, wrote:

Judges are not legislators. Legislators write laws—judges faithfully interpret them. So if a party wishes to have its activities exempted from a statute, it must ask the Legislature to enact such an exemption, not the judiciary.  [Feb. 18, 2021, p. 1; orders from other cases here.]


In other words, even if Congress in 2000 or 2008 when it reauthorized the TVPA did not envision it would be prohibiting a university from forcing students to sexually arouse potential donors for purposes of fundraising, such programs or policies would violate the law.

I'm not going into the weeds of the NU brief, but I do want to flag one especially slimy aspect of NU activities obscured by the NU response: the conflation of its pseudo-investigative Office of Equity activities with a bona fide campus watchdog office. The NU memorandum fails to acknowledge the extent to which NU's investigative activities on and off campus are weaponized operations that are used either to target critics or catch-and-kill complaints highlighting improper or unlawful conduct.  

Insofar as Richardson alleged the latter, she was not claiming NU made a rational choice of a range of investigative procedures, as NU avers in its motion to dismiss.  She claimed something far more sinister:


8. It further became evident to Plaintiff that Northwestern’s commitment to supporting victims was a façade to conceal a much uglier reality – Northwestern was willing to silence, and sacrifice the well-being of, its female athletes in order to keep its donors happy.  Refusing to be silenced, Plaintiff obtained numerous statements from her teammates, all saying the same thing – that they were forced to subject themselves to continuing sexual exploitation, assault and harassment, as encouraged and condoned by Bonnevier. With indisputable evidence, Plaintiff went back to Obering to prove her case and request a formal investigation by the Title IX office. Obering and Defendant Polisky then accused her of fabricating the evidence.
9. Even when presented with this evidence, Defendants continued to shame and discredit Plaintiff and obstruct the commencement of a formal investigation. Once the Title IX office was made aware of the hostile environment created by the University’s exploitative fundraising strategy, it continued the cover up by refusing to undertake a formal investigation as requested by Plaintiff.
10. Instead, the Title IX Office acted in violation of the University’s Title IX policy by opting for an under-the-radar, informal “educational training” for Bonnevier. Clearly any negative publicity about the sexual harassment, assault and exploitation of female cheerleaders would have impacted the University’s fundraising efforts.
11. After Bonnevier’s training, the Athletic Department told Bonnevier that she could not force the cheerleaders to attend tailgates. This had little impact, as the cheerleaders were still required to attend fundraising events, which were the primary source of Plaintiff’s Title IX complaint. In any event, Bonnevier threatened the cheerleaders, telling them that if they did not tailgate they would not eat. Defendants again attempted to make the appearance that they were implementing measures to remedy the situation while knowingly subjecting Plaintiff to ongoing harassment to protect a significant source of donations from alumni.
12. Plaintiff complied and did as she was told for the season, but again asked for help from the Title IX office because the sexual harassment continued. Knowing that they could not undergo another informal education for Bonnevier without upsetting Plaintiff and risking her speaking out on the matter, Defendant DaSilva agreed to commence a formal investigation.
13. However, Defendant DaSilva stripped Plaintiff of her status, rights, and accommodations as a Title IX complainant when DaSilva relegated Plaintiff to witness status. DaSilva gave the appearance that she was going to protect Plaintiff and preserve her anonymity. Not knowing exactly what that entailed, Plaintiff was grateful and agreed. However, when Plaintiff inquired as to the status of the investigation, she was informed that, because she wished to remain anonymous, DaSilva had permanently changed her status to a witness in the matter and she therefore was not entitled to receive information about the investigation or its outcome.
14. As a result of being relegated to witness status, Plaintiff was precluded from knowing the investigative findings or the steps the University was taking to address the matter.  The University was able to keep the investigation under wraps and preserve its false reputation as committed to preventing sexual harassment. Clearly the same commitment continued to be inapplicable to female athletes the University wished to exploit for financial gain.
NU's memorandum on behalf of a motion to dismiss was filed on April 30, 2021.Yesterday, outgoing President Morton Schapiro defended his selection of one of the defendants, Mike Polisky, as the next Athletic Director.  Today, there is a rally to protest this. And also a petition.


 


Tuesday, June 23, 2020

FOIA Motion for Judgment on the Pleadings

Novel Attempt to Avoid Government Dithering

click to enlarge

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

Sunday, June 21, 2020

ICE Officials Knew Dollar/Day Wages Lacked Congressional Authorization


click to enlarge

  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.

Friday, April 17, 2020

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.

 
#End read more