[This is a long read, but very important for FOIA litigators!]

"Government data show systemic failure in ICE’s FOIA Office. Will courts and Congress put it out?"

R. Andrew Free writes:

"Data released in March by the Department of Homeland Security (DHS) pursuant to the Freedom of Information Act (FOIA)’s annual reporting requirements revealed a near-total systems failure inside the U.S. Immigration and Customs Enforcement (ICE) FOIA Office.

The Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007 requires each agency to produce Annual Reports (ARs) containing data on its FOIA compliance. 5 USC 552(e). Through this requirement, Congress sought to reduce backlogs and increase proactive disclosures about agencies’ FOIA efficiency by mandating FOIA offices release specific metrics to the Department of Justice, and publish these metrics no later than March 1.

From backlogs to response times, appeal adjudications to expedited processing acknowledgements, ICE’s data falls short of statutory compliance. The data raise significant questions about DHS’s plan to ensure ICE upholds its legal obligations to requestors and the public. They also raise important implications for those forced to file lawsuits in order to gain FOIA compliance.

FOIA’s plain language contains a jurisdictional prohibition on court-sanctioned processing delays for agencies that cannot show exceptional circumstances and due diligence in handling the request at issue. Viewed in light of the DHS FY22 AR, FOIA’s “retain jurisdiction” provision, codified at 5 USC 552(a)(6)(i), means ICE cannot, consistent with the text of FOIA, seek or obtain court-sanctioned delays to complete records production and review once requestors file suit. Instead, ICE’s data dictate only one jurisdictionally acceptable option for courts when requestors file suit: Enjoin the agency’s unlawful withholding and order prompt production of records improperly withheld.

Backlogs, Wait Times Explode Even Though Requests Reach 10-Year Low

For starters, ICE’s FOIA backlog increased by over 400% in FY22. This occurred even though the number of requests ICE received dropped to the lowest level since FY12. The agency got only about 25,000 requests in FY22. This number was down 33% from the roughly 40,000 it received in FY21, and 73% from the all-time high of 90,304 in FY20.

But these lower numbers did not translate into higher efficiency. Instead, the agency processed a mere 15,460 requests in FY22. That represents a 66% reduction from the 47,865 it processed in FY21. This is a lower number of total processed requests than at any time since President Obama’s first term. 

The last time ICE received and processed so few requests, Fiscal Year 2012, President Obama was still in his first term. Only 30 people worked in the ICE FOIA Office, which now boasts 60 personnel. The ICE FOIA Office’s budget was $3.6M in FY12. It was $8.2M in FY22. 

ICE’s FOIA backlog grew from 3,958 overdue requests at the end of FY21 to a whopping 16,902 requests at the end of FY22. ICE accounted for 1 in 3 backlogged requests pending before DHS FOIA agencies at the end of FY22, compared with ~16% in FY21, and just 4.75% in FY19. 

With backlog comes delay, and DHS’s AR data from ICE has plenty of it. For example, ICE’s compliance with the 10-day acknowledgment requirement for expedited processing FOIAs dropped from 100% in FY16 to 88.5% in FY19, 42% in FY21, and then down to an abysmal 12.4% in FY22. 

Moving from failure to even acknowledge the most urgent requests to a failure to timely process the most complex, the average time ICE took processing a Complex Track FOIA request increased 62% from 71 days to 186 days—the highest average processing time ICE has ever recorded in the history of the Open Government Act. Requestors who got Complex Track records from ICE went from waiting an average of two-and-a-half months in FY21 to waiting more than six in FY22. 

Just as concerning from a timeliness perspective, those granted expedited processing waited 199 days—also all-time agency high—up from 99 days the previous fiscal year. So much for expediting. The highest number of days ICE took to process an Expedited Processing request in FY22 was a whopping 674, up from 598 in FY21, and 470 in FY20. 

Those at the very end of ICE’s years-long FOIA backlog line spent the entire year of FY22 mostly watching their stale requests grow a year older and staler, according to the AR data. The oldest Complex track request in FY21 had been pending more than 3 years, or 1109 days. In FY22, that wait increased to 1364 days—nearly 4 years.

For FOIA requesters who waited around all this time to get results and appeal, the average wait time for adjudication rocketed up to an all-time high of 165 days, on average. For comparison, the previous highest wait for an appeal with ICE was 66 days in FY21. ICE adjudicated appeals in an average of 11 days in FY18. 

In short, the data ICE release shows the agency’s FOIA Office is burning through mandatory statutory deadlines with no end in sight. 

What will it take to put out the fire engulfing ICE FOIA? 

File for 500?

Congress made federal courts the firefighters FOIA requesters can call in case of emergencies like this. Unlike nearly every other federal law affording members of the public a private right of action, FOIA allows requesters to skip the administrative appeals process and go straight to court—through a process called constructive exhaustion—when the agency blows deadlines. And unlike nearly every other type of suit to which the US is a party, agencies have just 30 days to respond. That’s half the usual 60. Time and again, Congress changed FOIA to make it easier, faster, and more effective for requestors to enforce FOIA’s demands through federal litigation.

But as any FOIA requester who’s ever sought to avail herself of this procedure soon learns, filing a FOIA suit is more like waiting on hold for a representative than calling 911. This is because ICE convinces courts (often with the acquiescence of requestors’ counsel) to hold off on spraying the agency with a judicial firehose at the beginning of the case. Specifically, ICE and the DOJ submit declarations and status reports claiming FY22 was an extremely busy, difficult year for the agency’s FOIA Office, and consequently, it can only process (not release) 500 pages per month.

When courts bless these representations with the slow-rolling productions ICE demands, the agency turns around and uses those often uncontested orders as precedent to convince more courts to do the same. It’s a confidence game that makes filing suit an illusory remedy for anyone who needs records on a deadline. 

Is that really what Congress had in mind? 

[Un]Exceptional Circumstances and the Absence of Due Diligence at ICE FOIA

This will be uncomfortable for the agency, its DOJ counsel, and judges accustomed to treating the language Congress legislated as an inconvenient afterthought. Unpleasant as the process of statutory compliance may be to all responsible, strict adherence to FOIA’s clear jurisdictional limits is necessary if requesters are to rescue their records from the lawless inferno of blown deadlines ICE’s AR data disclose.

So what does FOIA say?

Where FOIA requesters dial 911 and file suit after agency delays render their requests constructively exhausted, Congress vests FOIA courts with only two jurisdictional options.

1. First, district courts have “jurisdiction to enjoin the agency from withholding records and order the production of any agency records improperly withheld[.]” 5 USC 552(a)(4)(B).

2. Second, where the agency fails to respond within statutory deadlines, and constructive exhaustion is the basis of suit, Congress allowed district courts to “retain jurisdiction and allow the agency additional time to complete its review of records.” 5 USC 552(a)(6)(C)(i). 

But as to this second option, there’s a catch. To retain jurisdiction, the Court must first find that “the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request.” 5 USC 552(a)(6)(C)(i).

Critically for ICE FOIA requesters currently engaged or contemplating FOIA litigation, Congress defined ‘exceptional circumstances‘ in the negative: the term “does not include any predictable agency workload of requests . . ., unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.” 5 USC 552(a)(6)(C)(ii). 

DHS’s FY22 AR blows up any claim ICE can make to demonstrating exceptional circumstances. This data consequently strips courts of jurisdiction to do anything in constructive exhaustion cases other than enjoining the agency’s withholding and order production of unlawfully withheld records.

ICE’s 25,000-request workload in FY22 is exceptional only for its 10-year low. The 400% growth in backlog, caused by the 10-year low in processed requests, means ICE has effectively admitted it cannot demonstrate due diligence.

So, when FOIA requesters constructively exhaust their requests through ICE FOIA delays and file suit, issuing an injunction and ordering production is the only thing FOIA courts have jurisdiction to do under 5 USC 552(a)(4)(B) and (a)(6)(C)(i). 

Courts have an ongoing duty to reevaluate their jurisdiction in all federal civil suits. An absence of jurisdiction means an absence of authority for the court to take any action at all. FOIA is a limited waiver of sovereign immunity. Its jurisdictional limits must therefore be carefully examined. Jurisdictional challenges can’t be waived, and they can be raised at any time in the litigation.

The cases that support this proposition are generally cited by defendants hoping to throw cases out or limit claims long after initial motions practice has closed. But what’s good for the jurisdictional goose is good for the gander. Jurisdiction is power. Where courts lack it, their orders are subject to review and reversal. Fewer propositions will be as easily accepted by federal judges in the abstract. 

If jurisdiction is power, and courts cannot “retain jurisdiction and allow the agency additional time to complete its review of records” without the Government showing “exceptional circumstances” and “due diligence”, what’s a FOIA court to do?

There are certainly a range of potential policy options. But “only the written word is law.” The answer, therefore, lies in the plain language of the other statutory provision describing the jurisdictional power of the FOIA court. To put out the fire at ICE, courts must obey the plain language of the statute and “enjoin the agency from withholding records and order production of agency records unlawfully withheld.” 

An injunction is the the thing courts deny FOIA plaintiffs when they agree to allow ICE FOIA defendants more time to finish their search without making a statutory showing of exceptional circumstances. As a result, any order the Court issues to that effect is a denial of an injunction, an action outside its jurisdiction, and thus, immediately appealable to the Circuit court of appeals.

Appeals seeking a stay of the district court’s 500 page per month rolling production order because it was issued without jurisdiction could also seek the entry of the statutorily mandated injunction that must enter where the government has not and cannot meet its statutory burden. This is so because that is all FOIA courts have jurisdiction to do in light of the statutory text. Bold litigators may even consider the prospect of seeking a mandamus order against the district court, as they already do in appeals of discovery rulings.

As a matter of administrative convenience, courts and the government prefer to treat rolling FOIA productions as something other than compounding statutory timeline violations. Under this theory, statutory violations are a ticket into the judicial arena, but no guarantee the show will start anytime soon. They’re the initial response to your 911 call, following by interminable, looping “hold” music.

But this treatment - which arose in and is overwhelmingly favored by the District of Columbia District Court - finds no support in the plain language of the present-day FOIA statute. 

Niz-Chavez Motions

ICE FOIA litigators would do well to consider another situation in immigration officials adopted one plan that happened to be convenient for the agency, only to be told twice by the Supreme Court that no matter how convenient, if the plan violates clear statutory text, it is unlawful.

In Niz-Chavez v. Barr, Justice Gorsuch, summoning Justice Oliver Wendell Holmes, admonished agency officials and courts against legislation-by-bureaucratic policy: “If men are to turn square corners with the government, it cannot be too much to expect the government to turn square corners with men.” 

The fact that FOIA’s plain language requires Courts to enter an injunction and order records production where the government engages in unlawful delay might be inconvenient or contrary to agency appropriations practice is irrelevant: “Only the written word is law, and all persons are entitled to its benefit.” Bostock v. Clayton County (2020). 

The written word Congress has given us in FOIA requires ICE to acknowledge and make determinations on perfected expedited FOIA requests in 10 calendar days, and to make all other determinations in 20 working days. DHS’s FY22 AR data show ICE failing to meet that burden.

Where these failures drive requesters into court, ICE must show exceptional circumstances and due diligence before those courts have power to retain jurisdiction and allow the agency time to complete review. Because the AR data provide affirmative admissions that ICE cannot meet this showing, courts’ only option is to enter an injunction against ICE and set a date-certain for making records promptly available. Where courts ignore this jurisdictional limit and provide rolling production orders instead of injunctions absent an exceptional circumstances showing by ICE, FOIA litigants may appeal the denial of the injunction and the issuance of a rolling production schedule in the absence of the required jurisdictional showing. 

Party Like its FY15

More than 57,000 backlogged requests faced the agency at the beginning of that fiscal year.

ICE processed over 100,000 requests, and cleared all but about 850 from its backlog.

How?

DHS spent $12.2M, roughly 30% of its total FOIA budget, to pay 168 ICE FOIA officers to clear the backlog.

It worked. 

FY16 saw no backlog, and a fundamental reset.

At some point, halting the transparency fire at ICE is a matter of political will and oversight.

It’s unclear what it will require to cobble together sufficient concern among Congressional appropriators to warrant an increase in ICE FOIA funding. One immediate step would be for the agency that receives more federal funding than all other law enforcement agencies combined (DHS) to actually ask for additional resources. Surely this agency knows how to ask Congress for money.

Until then, strict adherence to the statutory text in FOIA suits will produce injunctions that require the agency to demand for resources. After all, ICE hasn’t exactly shrunk or been defunded since spending $12.2M in FY15. This is the balance Congress struck, so it is the one courts must mirror when wielding the scales of justice in FOIA cases.

It is no longer tenable for ICE to claim in court that it’s doing the best it can. The data show why that’s not true.

It’s no longer tenable for ICE to claim in court that it’s experiencing exceptional circumstances. The data show the exception has become the rule.

And it’s no longer tenable for courts to presume ICE has acted with due diligence. The data show ICE doing less with more.

To put out the fire at ICE, courts are going to have to turn on the hose."