Effective Use of the Freedom of Information Act

A brief history of FOIA

Signed into law in 1967, the Freedom of Information Act (FOIA) was heralded as an iconic achievement on behalf of governmental transparency.  In light of the current attacks on the media and press freedom, it is worthwhile to remember that FOIA was enacted for the stated purpose of implementing “a philosophy of full government agency disclosure.” In NLRB v. Robbins Tire Co., the US Supreme Court explained that the “basic purpose of FOIA was to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

As important a step forward as it was, the 1967 law did not contain sufficient enforcement provisions to force government agencies to comply. After the Watergate scandal in 1974, Congress amended FOIA to become the bulwark of democracy it is today. The new law introduced many new requirements, timeframes, sanctions for wrongly withheld information, and necessary language waiving fees for journalists and public interest groups.

 

FOIA in immigration cases

Unlike individuals in most court proceedings, noncitizens in immigration proceedings have few discovery options. FOIA is thus an essential tool through which a noncitizen is able to obtain records from the agencies involved in adjudications under the Immigration and Nationality Act.  Indeed, with a few exceptions, FOIA is the only means available to obtain such documents. Importantly, federal agencies may not withhold information unless it is covered by an exemption.  If an agency refuses to produce information, requestors are authorized by FOIA to petition courts to compel agencies to produce records.

Examples of FOIA requests that are typically filed by immigration practitioners include requests for criminal and border enforcement records, proof of inspection at a port of entry, records of immigration hearings, petition files, and notes by adjudicators and investigators.  Obtaining these documents under FOIA is essential to a complete understanding of the facts of the client’s case.

An example of a FOIA request that can determine the outcome of an application is where an applicant for adjustment of status has lost their proof of legal admission.  In order to establish eligibility for adjustment, the applicant must provide evidence of inspection.  If a noncitizen’s passport and visa are stolen, and she is unable to obtain a replacement I-94, it may be possible to obtain a record of inspection by filing a FOIA request.

 

FOIA Processing

USCIS is required to provide requested documents OR respond to the request within 20 working days. However, the response time may be extended an additional 10 days if:

  • USCIS needs to collect records from field offices;
  • Additional time is needed due to extensive volume of requested records; or
  • USCIS needs to consult with other agencies e.g. DHS with regards to requested information.

 

USCIS does manage an “accelerated track” for processing FOIA requests, but it only applies to individuals who are to appear before an immigration judge, and to those with demonstrated urgency.

 

The actual FOIA processing times at USCIS well exceed the prescribed 20 days. As per the USCIS website, current processing times using the 3-track system are as follows:

  • Track One (37 days): Simple requests.
  • Track Two (109 days): Complex inquiries that normally require additional search and review time.
  • Track Three (41 days): Requests by individuals scheduled for a hearing before an immigration judge.

 

FOIA exemptions and redactions

There are nine exemptions to FOIA that allow agencies to withhold or redact documents. Examples include information that is classified for national security, trade secrets or confidential commercial information, and law enforcement related information. One of the exemptions is often invoked to withhold officers’ interview notes.  Courts have rejected this practice as to factual material, holding that while analytical material may be withheld, material like the asylum and naturalization applicants’ statements during interviews should not have been redacted.

 

FOIA appeals

 Research data collected by Syracuse University indicates the FOIA processing delays are much worse than appears at the USCIS website. An administrative appeal may be merited to challenge unreasonable delay. Also, where an Agency incorrectly applied the FOIA exemptions by withholding documents in a file, or portions of the documents, requestor may file an appeal with USCIS’ administrative FOIA appeals office. The administrative appeal process will sometimes result in the production of a document that was not obtained through the request; however, it is also the case that administrative appeal may not resolve produce anything.  This is due to the fact that FOIA denials are appealed to the same agency that denied the request in the first instance.

 

Federal court

If the FOIA appeal is not fruitful, a complaint filed in federal district court pursuant to 5 U.S.C. § 552(a)(4)(B) is the strategy that is most likely to yield the desired result.  The agency will have the burden of proving the legal grounds for withholding information. Along with the growing backlog of unresolved FOIA requests, the number of lawsuits against USCIS alleging FOIA violations also has risen. If successful in federal court, the requestor may be entitled to an award of attorney’s fees under FOIA.

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