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.

On June 8, 2020, ICE filed its second motion for summary judgment, and plaintiffs filed their opposition and second cross-motion for summary judgment on June 29, 2020. Plaintiffs explain that ICE’s motion relies in large part on the same declarations that the Court already found insufficient to sustain ICE’s burden, and ICE’s scattered references to the October 2019 declaration are insufficient to sustain ICE’s burden. Plaintiffs further explain that ICE has not queried either of its integrated databases to extract and compile the disappearing fields, although it is technically feasible to do so, but instead produces information from discrete extracts of data pulled from its integrated databases using canned queries designed to create its own internal management reports. Because, as a matter of law, extracting data fields that exist in an agency’s database does not constitute the creation of new records, plaintiffs are entitled to summary judgment.

Find TRAC’s press release here.