|(05 Aug 2021)
In an unusual move, U.S. District Court Judge Amit P. Mehta, a federal judge for the U.S. District Court in Washington, D.C., rebuked Immigration and Customs Enforcement for “thumbing its nose” at the court in a highly consequential Freedom of Information Act (FOIA) lawsuit brought by the co-directors of TRAC. At a hearing on July 29, 2021, the judge ordered senior officials to personally appear before him on the following Wednesday, August 4, 2021 to address his questions.
Judge Mehta took this surprising action after Immigration and Customs Enforcement (ICE) refused to follow his June 2020 opinion. Judge Mehta made clear the agency could not continue to withhold detailed data dictionaries covering the entire contents of two agency databases. A series of events had led Judge Mehta to order senior officials to appear before him. ICE had long been dragging its feet in identifying and disclosing these data dictionaries. Following the judge’s opinion, ICE had claimed for the first time that complying with the court’s order would be unduly burdensome and claimed it would take ICE an estimated 66 years to review and locate the relevant records. ICE had asked Judge Mehta to let the agency off the hook from even attempting to comply.
When Judge Mehta refused, ICE continued to drag its feet. Then at the previous July 12 hearing to review progress in the identification and release of the data dictionaries, ICE official Ryan C. Stubbs had told the judge that “the agency’s [i.e. ICE’s] position is that these complete data dictionaries…are [to be] withheld in full.” Judge Mehta advised Stubbs, “…if that’s what the agency’s position is, then I think the agency needs to rethink it, because I will tell you…that’s a nonstarter with me.” But at the following July 29 hearing, openly flaunting the judge’s opinion and order, ICE produced samples where virtually all of the data dictionaries’ contents had been redacted and blacked out.
Judge Mehta responded: “It’s as if nobody heard a word I had to say last time we were here. I am literally at a loss right now. I am at a loss. I have never, in my judicial career, had an agency respond to a judicial order in the way that ICE has responded to this order in this case.” (See page 9 of transcript.) And he ordered “the head of the Civil Division…and whoever it is at the agency in the [ICE] general counsel’s office that can actually respond to meaningful questions from the Court, need to be [present at] this next hearing.”
Background on the Litigation
The case grew out of FOIA requests dating back to 2010. The suit was filed in 2014 after the agency failed to respond or conduct a search for records. At issue at the recent hearing was the release of data dictionaries identifying the tables and fields, along with code lookup tables, to two databases containing a master repository of immigration enforcement data. The first database, the Enforcement Integrated Database or EID, “contains information ‘related to the investigation, arrest, booking, detention, and removal of persons encountered during immigration and criminal law enforcement investigations and operations conducted by ICE, CBP, and U.S. Citizenship and Immigration Services,’” while the second database, the ICE Integrated Decision Support (IIDS) database, consists of “a subset of the EID database repository…[that] provides a continuously updated snapshot of selected EID data.” [See 2017 opinion.] Earlier portions of these database dictionary and schema had previously been released in response to FOIA requests by TRAC’s co-directors, Susan B. Long and David Burnham, but ICE had not responded to FOIA requests for updated versions until they took the agency to court in 2014.
These agency records to be made available are technical in nature and stored within the databases themselves. However, their release is particularly vital so the public can see what information ICE actually collects. The need for such official documentation is acute since without this the public has no meaningful way to effectively counter the all-too-common refrain that requesters for data from ICE receive that “no such records could be located” or simply “they don’t exist” when exactly the opposite is true.
Head of the Civil Division Along With ICE OPLA Chief Appear in Court
At the court hearing on August 4, 2021, senior officials responded to Judge Mehta’s order. Chief of the Civil Division of the U.S. Attorneys’ Office, Brian Hudak, spoke for the group. He first offered an apology, and outlined the actions he had already personally undertaken to ensure that ICE would henceforth comply with the judge’s order, including his commitment that he was personally taking charge and would review the data dictionaries to ensure that only the very limited fields that linked tables would, in accordance with the Court’s order, be redacted.
Hudak committed to providing TRAC’s co-directors an initial sample of each data dictionary within two weeks and the complete data dictionaries by October 1. He further promised to confer with plaintiffs’ attorneys during this process should there be any dispute over even these limited redactions, and to attempt to resolve them in advance of the next court hearing which Judge Mehta scheduled for September 7.
Also attending the hearing were Shiraz Panthaky, the ICE Chief of the Government Information Law Division, Office of the Principal Legal Advisor (OPLA), along with Kathleene A. Molen, an assistant U.S. attorney for the D.C. U.S. Attorney’s Office. Ryan C. Stubbs, Associate Legal Advisor, Government Information Law Division at ICE’s Office of the Principal Legal Advisor (OPLA) who had set Judge Mehta off by his original refusal to obey the court’s order also attended.
Attorney Scott Nelson, plaintiffs’ pro bono counsel from Public Citizen Litigation Group, who had successfully stewarded the case through over seven years of litigation agreed with the court that the hearing represented progress in the case. But since records were still forthcoming and have not been reviewed, he added, “the devil is in the details.”
The case is Susan B. Long and David Burnham v. United States Immigration and Customs Enforcement, et al., No. 14-cv-00109 (APM) (D.D.C. 2014). Additional case information is available on the FOIA Project’s website by clicking here. A copy of hearing transcripts are available on the FOIA Project’s Brief Bank here (7/12/2021) and here (7/29/2021).