FOIA Friday - Litigation Works Edition

A temporary thaw in ICE's FOIA Office

Happy FOIA Friday to all who celebrate!

If you’d like to join a small but mighty group of FOI requestors in a free weekly live brainstorm, please register here. First one’s Friday, May 9, 2025 at 12:30 p.m EST. We’ll work together to help make requests that can drive change and build power.

A Thaw in ICE’s FOIA Office

For years, I’ve documented the willful refusal of DHS and ICE to properly staff, train and fund the agency’s FOIA office. I did so for at least three reasons: (1) I have seen firsthand the power of public records to expose important, hidden truths about the government’s operations and propel meaningful change, and consequently believe that long delays and senseless denials work as an antidemocratic check against this power; (2) I believed that by calling out the government’s own statistics in real time, we could mobilize the third branch of government (judges) to bring the Executive into compliance, thus empowering requestors who are already in court, and reducing the need to sue in the first place; and (3) in the absence of judicial intervention or voluntary course correction by ICE, I believed creating a record of the willful decisions by those in charge of our nominally democratic institutions to choke the key engines of democratic participation to death would help delegitimize all the other decisions these governors made, thus empowering and educating the public to rise up and create something new. After all, if transparency and accountability are essential elements of democratic governance, and public records compliance is the primary mode of realizing these values, then a systemic failure to comply reflects a systemic choice to surreptitiously replace our stated structure of governance with fascism.

As to the second reason — mobilizing the judiciary to force DHS agencies into FOIA compliance — many of you know and have been part of what we’ve been doing together in the background since 2021. In various formations, dictated by a range of external factors (funding, politics, capacity, etc.), we’ve quietly thought and moved together to put the lie to DHS FOIA officers’ sworn declarations about resource limitations. This collective work resulted in case after case of ICE, CBP, or DHS being told by federal judges that they’re violating the law.

To name just a few,

• in Moore v. ICE, 513 F. Supp. 3d 742 (W.D. Tex. 2021), a federal judge rejected an Open America stay that would delay release of CBP records to journalist Bob Moore, stating:

  Considering those figures and the chart above, the record shows that, even before the pandemic, CBP has been exercising no due diligence in processing Plaintiff's FOIA requests because its production rate was extremely inadequate.1 First, as mentioned above, despite the fact that CBP's general workload before the pandemic had been anticipated and projected in its own reports to Congress, the record contains no evidence that CBP requested additional funding then to deal with what it now claims was a "dramatic increase in the number of FOIA requests received." Mot., Ex. 1 at 2; see also Nightingale v. U.S. Citizenship and Immig. Services, 19-CV-03512-WHO, 2020 U.S. Dist. LEXIS 242508, 2020 WL 7640547, at *10 (N.D. Cal. Dec. 17, 2020) (finding that DHS and some component agencies failed to show they were exercising due diligence because "[t]here [was] no evidence in the record that [they] ha[d] even attempted, let alone succeeded, in persuading Congress to change the law or provide additional funds to achieve compliance [with FOIA]."). The record neither contains any evidence of what CBP's workload expectations were for 2019 and 2020 because CBP appears not to have published such information in its budget requests for FY2019 [**14] and FY2020. CBP neither included such [*749] information in its motion, reply, or response to Plaintiff's sur-reply. With such information lacking from the record, the Court is incapable of knowing or even estimating the extent of CBP's predicament and how it has exercised due diligence to address it.

• in Transgender Law Center v. ICE (N.D. Cal.), a federal judge granted declaratory judgment on our claim that ICE failed to make records promptly available:

  Defendants' response to Plaintiffs' FOIA requests did not comply with the deadlines prescribed by FOIA. Defendants' failure to timely respond to the requests as required by FOIA undercuts the public accountability measures Congress intended to protect in FOIA.”

• in Innovation Law Lab v. ICE (DNM), a federal judge granted a temporary restraining order requiring the agency to grant expedited processing of records pertaining to the Torrance County Detention Facility in Estancia following the death of Kesley Vial, where the agency argued through the sworn declarations of its FOIA officers that the filing of litigation itself IS expedited processing, and no further acceleration of releases is permitted.

• in Owen v. ICE (C.D. Cal), a federal judge held ICE has a pattern and practice of unlawfully delaying FOIA responses to requests by families and organizations following in-custody deaths:

  The particularly troublesome pattern is that, almost across
  the board and regardless of when the initial request was filed, ICE did
  not provide any response or any documents until after litigation was
  filed. It should not take a lawsuit for an agency to comply with FOIA.

• in Stevens v. HHS, 666 F. Supp. 3d 734 (N.D. Ill.) a federal judge granted a preliminary injunction requiring ICE process 1000 pages per month, rejecting the agency’s contention that it lacked resources to do so:

  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 [*749] faster than 500 pages per month risks disclosure of exempted documents.

• Separate from the collective labor that drove the decisions listed above, but no less foundational to their ultimate success, is the groundbreaking injunction obtained by the brilliant team in Nightingale v. USCIS (N.D. Cal.), where immigration lawyers got ICE and USCIS declared in violation of FOIA with respect to their processing of A-Files, and forced a huge staffing increase within the agency’s FOIA office.

Notwithstanding all of this at least one of which (Stevens), ICE has appealed to the circuit court, apparently on the basis of all the harm it’s supposedly gonna cause ICE FOIA to produce 1000 pages per month, DHS / ICE made the following claim in its most recent annual Chief FOIA Office report:

“FOIA litigation did not impact the agency’s overall request processing and backlog.” - ICE FOIA, according the DHS Chief FOIA Officer Report from FY24 (page 47)

Maybe that’s true. If so, it’s tough to square with all the sworn declarations the agency has filed about the burdens accelerated processing would pose for the agency’s FOIA backlog reduction efforts.

The Data Tells the Story

Fortunately, Congress requires agencies to publish data allowing We the People to test this proposition. That data strongly points to the conclusion that at least until Q1 of FY25, the agency was concerned enough about being placed in a form of judicially managed quasi-receivership pursuant to a more broadly sweeping pattern-and-practice injunction that it took material steps to improve its performance. How do we know? Just look at the numbers:

Table 1: $ Amount Spent on ICE FOIA Office

ICE (finally) stopped defunding its FOIA office. In fact, it spent more in FY24 than it has in any year since 2015, which the agency engaged in a heroic feat of backlog clearance.

Table 2: ICE FOIA Personnel & Staffing Breakdown

In FY24, ICE finally returned its staffing levels to something resembling 2016 staffing. This, too, is a positive development. As we see in the chart below, ICE FOIA staffing is still below the 168 positions it took to clear the agency’s backlog in 2015. But they added 10 FTE equivalent positions to work the problem.

Table 3: Backlog Reduction (with an important caveat)

So what did all this money and staffing do for ICE’s backlog? Predictably, more resources meant FY24 saw a reduction for the first time since FY15. This is great news for requestors. Mostly. Part of the reduction of the backlog is almost certainly due to a combination of totally frivolous denials, administrative closures, and cream-skimming of the easiest requests, at least if my own 200+ requests are any indication.

These practices, which I’ve previously put ICE on written notice to halt, include baselessly describing requests as “too broad” and then administratively closing them (without informing requestors of our right to appeal). I’ve had at least a half-dozen of these determinations reversed, but I’m in a relatively more advantageous position that other requestors, owing to my frequent FOIA flier status. Similarly, ICE FOIA has been training its initial screeners to demand the names of custodians of records who are subject to our requests, and when we don’t, they similarly close the request. They’ve done this to me and to a host of other technical advisory clients who were unaware that 6 C.F.R. 5.3 doesn’t actually require you to name the official(s) who have the records, or that ICE says in declarations it’s OCIO (office of the chief information officer) can run an agency-wide email search for the terms we seek. Finally, I’ve seen more than a few cases in which the agency will misread the request, violating the presumption of liberal construction that it’s under a legal duty to apply to request language, and tell us the information we’re requesting is already public, which a vague link to its FOIA library page. These and other practices likely help explain the backlog reduction.

Table 4: Processing Times by Track

The other piece of good news from FY24 is that increased staff and budget has led to a reduction in the average and highest number of days it takes the agency to complete complex and expedited processed request. If we’re highlighting the key vectors in the data, however, we see it’s still the second worst year it’s ever been for Complex processing: 210 days (7 months) on average. Expedited processing requests are somewhat better, but still really bad - at 148 days on average, down from 207 in FY23 and 199 in FY22.

It’s worth noting that this is ALL data that gets us to the situation as it existed on September 30, 2024. What’s happened since then? DHS, as usual, is late in filing its report to the DOJ:

That black text means the agency hasn’t turned in its numbers, which prevents us from knowing for sure where we stand today.

Turning Data Points into Benchmarks

Asian Americans Advancing Justice - Atlanta and I recently filed a Valentine’s Day love letter of a FOIA suit against ICE. We brought a pattern and practice claim, citing just a few of the many cases in which the agency has been determined to violate statutory deadlines without justification.

ICE agreed to produce 750 pages per month after we informed them we intended to seek a preliminary injunction for our expedited processed FOIA requests, one of which included records pertaining to the in-custody death of Jaspal Singh at the Folkston Main ICE Processing Center in Georgia. Within a month after telling them we intended to seek a PI, we got our first FOIA production. 909 pages.

That’s the stuff we used to have to engage in motions practice to receive. Don’t ever, ever, ever let someone tell you “500 pages per month is the norm” or “the going rate is 350 pages per month.” It’s not. And this case is proof.

Things seem to have gotten temporarily better in the ICE FOIA Office. The idea that these improvements are totally unrelated to all of the litigation and decisions finding the agency violates the law may be what the agency tells the public in its Chief FOIA Office Report, but I strongly suspect it’s only because they’re getting sued and subjected to so many judicial decisions that they elected to course-correct.

I’ll write about the 2025 report whenever DHS gets around to releasing it. In the meantime, keep filing, keep fighting, keep suing. It works.