District Court Rejects DHS and ICE FOIA Withholdings That Conceal Misrepresentations and Embarrassment

In a victory today for plaintiffs the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Cardozo Law School Immigration Justice Clinic in their Freedom of Information Act (FOIA) lawsuit against Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI), the Executive Office of Immigration Review (EOIR), Judge Shira A. Scheindlin of the Southern District of New York ordered the agencies to produce further information concerning whether and how localities may "opt-out" or limit participation in Secure Communities. Secure Communities functions as a deportation dragnet to funnel non-citizens into the mismanaged ICE detention and removal system. The program automatically runs fingerprints through immigration databases for all people arrested and targets them for detention and deportation. The program currently operates in almost 1,400 jurisdictions in 43 states. Set for expansion nationwide, Massachusetts, Illinois, New York and several local jurisdictions have informed immigration authorities they do not want to participate in the program.

In a strongly worded opinion, the court rejected the agencies' efforts to withhold documents that would reveal embarrassing or misleading information about Secure Communities. Timely disclosure of these records is especially critical in light of the ongoing public scrutiny of Secure Communities. As a result of the disclosures in this case, public pressure and mounting concerns by public officials, the Office of Inspector General is beginning an investigation today into the agency's misrepresentations of the Secure Communities opt-out policy and the program's failure to fulfill its stated mandate. Simultaneously, DHS has initiated an advisory commission to examine the limited issue of individuals targeted through Secure Communities after being arrested for minor traffic offenses. Today's order makes clear that the OIG's review is sorely needed and that the problems with the program run much deeper than the traffic offense-related issues that the DHS-appointed commission is considering.

Sunita Patel, Center for Constitutional Rights staff attorney said, "The court refused to allow the government to withhold documents that merely discuss how to spin an agency policy for the public, especially when the agency's messaging is purposefully misleading. The release of the information improperly withheld from the public will only help public officials and community members in the on-going Secure Communities debate."

The court vindicated the role of FOIA to challenge the government's effort to hide the true nature of Secure Communities from the public, "Deliberations about how to present an already decided policy to the public, or documents designed to explain that policy to--or obscure it from--the public, including in draft form, are at the heart of what should be realized under FOIA." (Opinion, p. 29). The Court further stated that FOIA exemptions "are not concerned with chilling agency efforts to obfuscate, which are anathema to the operation of democratic government." Criticizing the agencies' past public representations, the court concluded that "[t]here is ample evidence that ICE and DHS have gone out of their way to mislead the public about Secure Communities." (Opinion, p. 32). As the court noted, "[t]here is no risk of confusing the public by the inaccurate or premature disclosure of agency views, as the public is confused, and it is plaintiffs who seek to clarify by obtaining the release of a fuller explanation of agency views." (Opinion, p. 61) As a result, the court ordered that documents discussing the voluntary nature of Secure Communities after January 27, 2010 and mandatory nature of the program after March 2010 are not protected by the deliberative process privilege and must be released.

"While the Obama administration boasts of the 'Secure Communities' program to win political points with Republicans, it has kept actual policy details nearly secret from Congress, state partners, and the American public. Thankfully, federal courts, not ICE, get the last word," stated Pablo Alvarado, Director of NDLON. "The administration has a responsibility to be transparent and provide information to the public regarding this dangerous program. As we've seen in states and localities across the country, the more the public learns about 'Secure Communities,' the more they say 'no thank you' to its implementation."

In an opinion heavily focused on providing clarifying information about the mandatory nature of the controversial Secure Communities program, the court also engaged in closed review (in camera review) of 49 documents and ordered further releases. For example, the court ordered production of an email string from the Deputy Press Secretary about what the agency's message to the public should be about opt-in because "[t]he redacted portions are no more deliberative than those left unredacted, even if they are more embarrassing to the agency, which of course is not a relevant consideration under FOIA." (Opinion, p.49) "[T]he entire purpose of this FOIA is to obtain clarity as to the agency's position, where the agency has made contradictory and confusing representations." (Opinion, p. 49 For another document outlining the updated messaging to support ICE maintaining its position to fully use federal information sharing by 2013, the court stated that "[t]he redacted lines do not appear to be any more deliberative than the rest of the memorandum. They are, however, potentially more embarrassing, insofar as they highlight the inconsistencies in the agency's public stance. The purpose of FOIA is to shed light on the operation of government, not to shield it from embarrassment." (Opinion, p. 71). Importantly, the court refused to allow the government to withhold documents based upon a discussion of how to spin an agency policy for the public, especially when the agency's messaging is purposefully misleading.

Said Bridget Kessler, an attorney at the Cardozo Law School Immigration Justice Clinic, "Today, the court has sent a strong message that the public's interest in government transparency outweighs the government's desire to save face. Our government officials cannot use laws meant to ensure transparency to withhold information from the public, especially if the only conceivable reason for preventing the release of the information is that it might be embarrassing or provide evidence of government misconduct."

Today's order rules on cross-motions for summary judgment by plaintiffs CCR, NDLON and Cardozo and the government on exemptions the government used to withhold records or portions of records relating to the ability of states and localities to "opt-out" or limit their participation in Secure Communities. The government initially produced these documents on January 17, 2011. The court orders defendants to release certain categories of documents to the public. For other categories of documents, the court finds that the government did not justify the redactions and orders the government to produce new indexes detailing the justifications their redactions. If the government does not provide sufficient justification in these revised indexes, the court will order the government to produce those documents or portions of documents. Finally, the court finds that a number of the redactions by the government were justified. The court ordered the government to produce the documents and the revised indexes by August 1, 2011 and to appear in court for a conference on August 11, 2011 at 5:00 p.m.