Getting responses through the Freedom Of Information Act can be a serious challenge.
WASHINGTON ― President Donald Trump has made his promise of aggressive immigration enforcement the centerpiece of his domestic agenda. But two agencies tasked with enforcing the nation’s immigration laws — U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) — have long attracted criticism for failing to release documents and data in a timely manner, if at all. That makes it hard for journalists, advocates, lawyers and the public to keep tabs on what the administration is doing.
Under the law, the government is supposed to grant or deny Freedom of Information Act requests (which any member of the public can file) within 20 working days, with some exceptions, and provide records unless the information is legally exempt from disclosure.
But if you file a FOIA request with ICE or CBP, you may find yourself in a bureaucratic morass: Fighting a faceless online portal (with CBP), watching your request ping-pong between agencies or sub-agencies, getting summarily rejected, struggling to talk to a human (ICE switched to an email-only system about two years ago), and waiting months — or more than a year — to get back a document that may be heavily redacted, according to HuffPost interviews with requesters. Some say they must resort to litigation to get any meaningful response.
Despite progress, “there are key FOIA program challenges that remain,” acknowledged Philip Kaplan, the chief FOIA officer at the Department of Homeland Security, (which encompasses CBP and ICE), in a report dated February 2018. He cited technological limitations, staffing and budget constraints, and a spike in litigation as some of the issues.
ICE’s response times are “terrible” and “unpredictable,” in the experience of Susan Long, co-director of the TRAC Research Center at Syracuse University, which provides comprehensive data about federal enforcement activities. CBP, she’s found, is “somewhat better” and “actually attempting to provide useful information.”
Starting in early January 2017, shortly before Trump’s inauguration, ICE “stopped providing a lot of the key indicators that would allow you to examine the agency’s performance,” she said — and the agency’s responses have “gone downhill from there.”
The co-directors of TRAC filed a lawsuit last year charging ICE with unlawfully withholding certain records.
Complaints about delays and secrecy at ICE and CBP — as well as other federal agencies — long predate Trump. But his administration set a new record last year for censoring, withholding or claiming not to find records across the federal government, according to the Associated Press.
And with immigration policies shifting quickly, FOIA is “more critical than ever as far as understanding … what policies this administration is pushing and why,” said Mark Fleming, associate director of litigation at the National Immigrant Justice Center, which provides legal services to immigrants.
“Even if you disagree with them, as a democracy, we need to know why,” he added.
Under Trump, requesters say they have run into challenges using FOIA to get information about issues key to his immigration platform. For example:
Requests about communications related to Trump’s proposed wall on the U.S.-Mexico border have gone unfulfilled. Requests for records illuminating CBP’s local implementation of the “Muslim Ban” executive orders led to lawsuits; over a year later, requesters say they are are still awaiting a complete response from the agency.
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Another requester said he wasn’t able to get information about the companies that responded to a call for providing a new detention center for undocumented immigrants — or the location of the proposed facility. Still another couldn’t get copies of more than a dozen “commonly used” immigration enforcement documents — and says he still hasn’t received them after winning an appeal.
Last month, TRAC received a response from ICE that withheld all requested records identifying the law enforcement agency that was sent an ICE detainer request, and another response that withheld the name of the DHS program responsible for taking the immigrant into custody, Long said.
Multiple requesters told HuffPost they believe ICE has short-circuited requests quickly of late.
The agency’s practices and policies are “in line with federal FOIA law,” an ICE spokeswoman told HuffPost. She also said ICE “works diligently to complete requests in a timely manner,” but acknowledged that “given the sheer volume of requests received coupled with their complexity, delays are inevitable.”
On average, the ICE FOIA office receives 1,400 to 1,500 requests per week, the spokeswoman said. The agency has contracted with a service to assist with the backlog of requests, with the goal of eliminating those cases before the end of the fiscal year (Sept. 30).
ICE has about 50 employees responsible for FOIA processes, and the agency granted at least partial information in the majority of cases during the 2017 fiscal year, according to the recent DHS report.
John Sandweg, who served as ICE’s acting director in the Obama administration, said he found the agency to be “pretty good” in responding to FOIA requests, in that sometimes the agency would disclose a lot of information ― sometimes more than he expected. In many cases when ICE didn’t provide data, it didn’t have the information, he added.
“Whether you’re pro-enforcement or you’re anti-enforcement, the public debate could be much better informed if ICE’s data collection and reporting operation was improved,” Sandweg told HuffPost.
A CBP spokeswoman said that “due to the large volume and increasing complexity” of requests the agency receives, “delays are inevitable.” She said that requests to CBP’s FOIA office increased roughly 88 percent from the 2014 fiscal year to fiscal 2017.
The office has about 55 employees and granted full or partial information in about 42 percent of its cases in fiscal 2017, according to the DHS report.
Many requesters don’t blame hard-working FOIA officers for the troubles with FOIA responses, but say that transparency needs to get the same focus that other parts of an agency do.
“Congress should be deeply concerned when an executive agency basically flouts federal law,” said Mitra Ebadolahi, a Border Litigation Project staff attorney with the ACLU. She said that, among other reforms, there needs to “potentially be more robust sanctions for delay and obstruction, and that would need to be legislated, so that there’s an enforceable remedy.”
Under FOIA, agencies are also supposed to put frequently requested information online. With certain documents related to issues like the travel ban or separating families at the border, “they should just post that on their websites, it shouldn’t even be a FOIA process because you know that’s what people want,” said Ron Nixon, The New York Times’ homeland security correspondent.
Melissa del Bosque, an investigative reporter who has covered the U.S.-Mexico border since 1998, said journalists face significant obstacles shedding light on Trump’s immigration policies, as more and more people are put in detention.
“We’re just going to see a lot more abuse, hunger strikes, people with much, much longer detention sentences probably, who haven’t had their cases heard yet … and it’ll be harder and harder for us as journalists to find them, or to be able to document their stories,” del Bosque said.
“It’s pretty bleak,” she added.