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.
