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Long v. Immigration and Customs Enforcement (2017)

Starting in 2012, the co-directors of the Transactional Records Access Clearinghouse (TRAC) submitted Freedom of Information Act (FOIA) requests to Immigration and Customs Enforcement (ICE), seeking anonymous information about each person deported as a result of the Secure Communities Program. Until late 2016, ICE produced data responsive to TRAC’s requests. Then, in response to the August 2016 request, ICE reversed course, denying the request on the theory that its responses to previous requests had been discretionary and exceeded the requirements of FOIA because extracting the requested fields from ICE’s database involved the creation of new records. Beginning with TRAC’s August 2016 request, ICE refused to produce 27 fields that it had previously provided.

Representing TRAC, Public Citizen filed suit in June 2017. (TRAC’s press release is here.) On September 28, 2018, the district court denied both sides’ cross-motions for summary judgment 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 but granted ICE an additional opportunity to try to meet its burden by submitting a supplemental declaration.

The parties later filed new cross-motions for summary judgment. TRAC’s motion explained that ICE’s motion relied in large part on the same declarations that the court already found insufficient. We further explained 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 produced information from discrete extracts of data pulled from its integrated databases using canned queries designed to create its own internal management reports. We argued that, as a matter of law, extracting data fields that exist in an agency’s database does not constitute the creation of new records.

Nonetheless, in a decision issued on September 2, 2021, the court ruled in favor of ICE. Although the court found that the information required to produce the fields exists in the database, it held that producing those fields would necessitate the creation of new records because ICE would have to engage in a correlative analysis process to link removals and detainers in the database to the Secure Communities Program.