Immigration Law

CBP Must Meet FOIA Deadlines: Brown v. CBP

"Plaintiffs submitted Freedom of Information Act (“FOIA”) requests to defendants United States Customs and Border Protection and Department of Homeland Security (together, “CBP”) that have gone unanswered far beyond the deadline Congress mandated. They allege a single claim in this putative class action: CBP has violated FOIA by engaging in a pattern and practice of failing to respond to FOIA requests within the statutory timeline. Dkt. No. 22. Defendants move to dismiss the complaint for failure to state a claim and for lack of standing. Dkt. No. 26. The Court denies the motion. ... The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy, 33 F. Supp. 2d 1184, 1187 (N.D. Cal. 1998) (quoting H. Rep. No. 876, 93d Cong., 2d Sess. (1974) (discussing “the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits”)). The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.  Consequently, courts have repeatedly found that an agency’s failure to respond to a FOIA request within the statutory time limits violates FOIA and allows the aggrieved party to sue. ... The complaint here describes a longstanding and pervasive practice of unreasonable delay in CBP’s response to FOIA requests. That amply satisfies Rule 8. ... Plaintiffs have adequately alleged a FOIA violation. Defendants should file an answer to the complaint within 10 days of this order." - Brown v. CBP, Sept. 17, 2015.

[Hats off to Stacy Tolchin, Matt Adams, Trina Realmuto, Mary Kenney and Melissa Crow!]

More here in this Sept. 18, 2015 Law360 article by Kelly Knaub.