The federal Freedom of Information Act, 5 USC § 552, gives Americans the right to access to documents held by federal government agencies. In so doing FOIA gives us the right to know what our government is doing. It’s the foundation of an open, transparent government.
Unfortunately, for years federal agencies have frustrated the intent of Congress by stalling responses to FOIA requests and improperly applying the 7 exemptions found in FOIA. This page describes the ongoing and still developing story of the author’s FOIA request from September 26, 2011 to ICE, or U.S. Immigration and Customs Enforcement, a part of the DHS, U.S. Department of Homeland Security.
Update as of December, 2013
ICE sent its final response to the author’s 2nd appeal of ICE’s denial of his FOIA request. A copy of that final response letter is here:
There are several problems with this response. The main one is that, as with the response to the author’s first appeal, ICE has completely ignored the contents of the appeal. The first appeal consisted of two parts (named part 1 and part 2) and a total of 37 pages of arguments and the legal and factual basis for those arguments. (That is not counting the attachments, which totaled several hundred pages.) ICE completely ignored the arguments and the legal and factual bases. The author included a copy of the first appeal in the 2nd appeal, which consisted of 3 parts and 21 pages plus attachments totaling hundreds of pages. The 2nd appeal made some new arguments, expanded on arguments from the first appeal, and provided a legal and factual basis for them. ICE completely ignored the arguments and the legal and factual bases in the 2nd appeal too except for one sentence: “With regard to your supplemental appeal dated November 18, 2013, please be advised that FOIA does not require agencies to do legal research, analyze data, answer questions or create records in response to a request.” I did not ask them to answer questions or create records. They are required to respond to the content of an appeal. If that entails doing legal research and analyzing data or reading the supporting documents then yes, FOIA requires the agency to do so. It is only common sense.
ICE has failed to respond to or even acknowledge my request for their field manual(s). They failed to describe their search, which if it was anything would have turned up the field manual(s) because everybody has one and they use it every day. ICE has incorrectly applied the exemptions, including exemption 7E, as if it applied to all law enforcement documents. I argued in both appeals and provided a factual and legal basis that it does not.
Background:
President Obama’s FOIA Memorandum
and Attorney General Holder’s FOIA Guidelines
The President and Attorney General have issued memoranda to all agencies emphasizing that the FOIA reflects a “profound national commitment to ensuring an open Government” and directing agencies to “adopt a presumption in favor of disclosure.”7 On his first full day in office, President Obama called for federal executive departments and agencies to administer the FOIA so as to achieve an unprecedented level of openness and transparency in the work of the Executive Branch, stating that agencies should administer the FOIA with “a clear presumption: [i]n the face of doubt, openness prevails.”8 The President directed agencies not to withhold information “merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” 9 He instructed agencies to respond to requests “promptly and in a spirit of cooperation.”10 In addition, the President encouraged agencies to proactively release records, without waiting for specific requests, so that citizens can be informed “about what is known and done by their [g]overnment.”11
The President directed the Attorney General to issue FOIA Guidelines for the Executive Branch that “reaffirm[] the commitment to accountability and transparency.”12
On March 19, 2009, Attorney General Eric H. Holder, Jr. issued new FOIA guidelines for the Executive Branch. 13 The Attorney General’s FOIA Guidelines renew the commitment to open government that the President proclaimed, and underscore the importance of effective FOIA administration.14
Attorney General Holder reiterated that agencies should administer the FOIA with a presumption of openness. 15
The footnotes refer to:
7 Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009) [hereinafter President Obama’s FOIA Memorandum]; accord Attorney General Holder’s Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act (Mar. 19, 2009) [hereinafter Attorney General Holder’s FOIA Guidelines], available at http://www.usdoj.gov/ag/foia-memo-march2009.pdf ; see FOIA Post, “OIP Guidance: President Obama’s FOIA Memorandum and Attorney General Holder’s FOIA Guidelines – Creating a New Era of Open Government” (posted 4/17/09).
On September 26, 2011 the author of this website made a Freedom of Information Act (FOIA) request to Immigration and Customs Enforcement (ICE) seeking documents related to ICE’s policies and procedures for carrying out searches and investigations.
FOIA 2012 100 acknowledgment by ICE
Sixteen months later ICE sent a “final response” disclosing two documents.
ICE Final response to 2012FOIA100
The two documents consisted of 50 pages and are not shown in the above file.
The author appealed. ICE upheld the appeal and remanded the request back to ICE FOIA for a broader search and because there may be more documents that are responsive to the request. The remand letter over the name of Grace Cheng, Government Information Law Division, Office of the Principal Legal Advisor, is here:
ICE remand letter to OPLA13-790, 2012FOIA100
Five months later ICE responded to the appeal by sending two envelopes of documents, 211 pages total. The cover letter was mostly about the exemptions which ICE cited as their reason(s) for withholding documents. Supposedly 293 pages were responsive to the request but ICE withheld 82 pages.
You can download a copy of the response to the first appeal here:
ICE final response to first appeal October 21 2013 B
The author had great expectations of finally getting the requested information via FOIA. Unfortunately ICE has abused FOIA and violated President Obama’s Open Government Directive and the Attorney General’s memorandum to executive agencies and departments about that Directive. The Directive basically said that President Obama’s administration would be characterized by openness. Well apparently ICE doesn’t like Obama or doesn’t like openness or doesn’t like FOIA. They gave me nothing of any real value. My next step is to file an appeal within 60 days of October 21, 2013. FOIA does provide for a requester to sue the agency to compel compliance with FOIA. We may get there but we are not there yet.
The 211 disclosed pages made up 33 documents plus one cover letter. ICE sent two copies of one document, minus 30 pages (in each copy). As you will see many pages have large sections blacked out.
Probably the most interesting of these documents is the cover letter. As you can see it is all a supposedly legal justification for withholding documents. What you do not see is that, in the appeal in April, 2013, the author had already addressed and refuted ICE’s arguments as they apply to the FOIA request. Also, ICE as with every agency has the advantage in that they know what documents they have. Therefore the requester sometimes has to guess about the existence of a particular document. In particular in this case the ICE field manual, which is responsive to the FOIA request. In my appeal the author specifically asked for the ICE field manual. They have not provided it or justified withholding it. They are pretending, by ignoring the request and not responding to it, that they have no field manual. They do.