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YOU’RE NOT BEING HELPFUL

Federal agencies sandbag Freedom of Information Act requesters all the time. In fact, under the Obama Administration – “the most transparent administration in history,” according to the President – “the Obama administration set a record for the number of times its federal employees told disappointed citizens, journalists and others that despite searching they couldn’t find a single page requested under the Freedom of Information Act,” according to the Associated Press.

An order in a Southern District of New York FOIA suit last week may help explain why that is. A federal judge criticized Immigration & Customs Enforcement for torpedoing an FOIA request by searching terms in the plural only, such as “home enforcement operations,” “quotas,” “statistics,” “targets,” “non-targets,” and “collaterals.”

The technique excluded all singular forms. The district court noted that if “Defendants instead searched for only the singular form, they would have yielded documents containing the plural form as well… Without explanation, such searches do not appear to be calculated to produce all responsive records.”

The court also slammed the agency for interpreting the FOIA request as narrowly as possible to avoid release of documents. The requesters were seeking data from ICE’s Law Enforcement Systems and Analysis (“LESA”) on the agency’s home raids to capture illegal immigrants. ICE admitted LESA had a data file of addresses raided, but said it “does not know—and does not track—whether that address is a business, a residence, a street, or some other type of location.” Because it couldn’t tell if the location was a home, the agency “determined that a search of LESA would not yield responsive documents.”

The court ruled that ICE’s “chief reason for failing to search LESA is not valid under FOIA. As part of an agency’s obligation to “construe FOIA requests liberally,” the agency has “no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.”

There’s a good reason that savvy FOIA veterans say that requesters should file a second FOIA request seeking the processing notes from a prior FOIA request. One reporter wrote, “In my case, ‘FOIAing my FOIA’ yielded some interesting, if depressing, behind-the-scenes info. One released email showed that, at one point, my request was forwarded to the wrong DEA field office, where it was accidentally deleted.”

Opinion and Order, Immigration Defense Project v. ICE, Case No. 14-6117 (S.D.N.Y.  Sept. 23, 2016)

Eil, Six lessons from a five-year FOIA battle (Columbia Journalism Review,  Sept. 27, 2016)