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.

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.