Long v. Immigration and Customs Enforcement (2017)

We represent the co-directors of the Transactional Records Access Clearinghouse (TRAC) in this Freedom of Information Act (FOIA) case against Immigration and Customs Enforcement (ICE).

Since 2012, plaintiffs have regularly submitted FOIA requests to ICE seeking anonymous information about each person deported as a result of the Secure Communities Program. Until the August 2016 request at issue here, ICE had produced data responsive to plaintiffs’ requests. According to ICE, such responses were discretionary and exceeded the requirements of FOIA because extracting the requested fields from ICE’s database involves the “creation of new records,” and ICE decided to discontinue such discretionary productions. As a result, beginning with plaintiffs’ August 2016 request, ICE has refused to produce 27 fields that it had previously provided to plaintiffs.

The parties filed cross motions for summary judgment. On September 28, 2018, the Court denied the parties’ motions without prejudice, concluding that the matter “cannot be resolved on the present record” because “there remains a genuine dispute of material fact concerning whether the requests at issue require ICE to create new records.” The Court identified “several shortcomings” in the declarations ICE submitted in support of its motion, and granted ICE an additional opportunity to try to meet its burden by submitting a supplemental declaration. ICE’s deadline to file its supplemental declaration was deferred while the parties attempted to negotiate a settlement. After eight months of negotiations, settlement efforts failed and ICE filed its supplemental declaration in October 2019.

Because the supplemental declaration suffers from the same shortcomings that the Court identified with respect to ICE’s previous declarations, we have filed a motion seeking leave to take the deposition of ICE’s declarant, and a follow up deposition of ICE under Fed. R. Civ. P. 30(b)(6) on any topics that the declarant is unable to address fully during her deposition.

Find TRAC’s press release here.