Immigration Attys Say DOJ Isn't Complying With FOIA Request

"The American Immigration Lawyers Association on Thursday urged a D.C. federal court to enforce an order that the Executive Office for Immigration Review must turn over documents related to AILA’s request for information on complaints against immigration judges, saying the government is shirking its obligations.

The EOIR, part of the Department of Justice, is relying on a purported discrepancy between what’s in the court’s order and its opinion in which the court required the EOIR to turn over all of AILA’s requested information short of judge’s personal details, according to AILA’s motion to enforce the December order. AILA says the court needs to step in to order the government to turn over about 60 remaining documents that are mislabeled as “non-responsive” and redacted.

“This court granted summary judgment to AILA on all information redacted from complaint files other than immigration judges’ personal identifying information withheld before summary judgment pursuant to [an exemption under the Freedom of Information Act],” the motion says. “The government’s failure to disclose all information originally redacted as ‘non-responsive’ from responsive records is at odds with the plain language of the court’s opinion in this respect.”

In correspondence with AILA after the court’s Dec. 24 opinion and order, the government had contended that it did not have an obligation to disclose all information redacted as “non-responsive” because the court’s order accompanying the opinion was drawn more narrowly than the opinion, according to the motion.

However, on Thursday, the AILA bashed that argument, saying that although the language of the order is “ambiguous,” the summary language of the opinion is clear: The government may withhold the judges personal information addressed in the summary judgment papers, but it must disclose the “other information in the complaint files,” the motion says.

AILA sued EOIR and the U.S. Department of Justice in June 2013, accusing them of failing to produce records in response to AILA’s FOIA request.

AILA sought a variety of documents relating to complaints against immigration judges, such as records relating to the resolution of those complaints and an index of the requested records that constitute final opinions and orders made in the adjudication of cases.

The organization also challenged the government’s failure to comply with law by electronically publishing all final opinions and orders made in the adjudication of the complaints.

After dueling summary judgment motions from the parties, Judge Christopher R. Cooper granted each party partial summary judgment. The current dispute stems from ambiguity surrounding the degree to which Judge Cooper’s opinion and order differ in what he granted.

His opinion granted the government’s request that it be allowed to withhold judge’s personal identifying information from AILA’s FOIA request, however he granted the legal organization summary judgment “with respect to [the government’s] redaction of other information in the complaint files,” according to court records.

The court’s accompanying order used narrower language on the decision in AILA’s favor.

In the dispute that arose between AILA and the government in the wake of the opinion and order, the government did hand over additional documents, but managed to retain 60 pages. It pointed to the language in the order as justification for turning over only certain information pertaining to the main complaint file, according to AILA’s motion.

AILA asked that if the court doesn’t order the government to comply, it should alternatively clarify its order to make it plain and clear that summary judgment was granted AILA with respect to all redactions marked as “nonresponsive.”

A DOJ representative declined on Friday to comment, referring to court filings in which the EOIR says it has fully complied with the order.

Julie Murray of the Public Citizen Litigation Group, which represents AILA, told Law360 in a statement that the judge's language was clear.

"FOIA does not permit the government to redact words, sentences and paragraphs of information as 'non-responsive' in response to a FOIA request that seeks records in their entirety," Murray said. "To permit otherwise would invite agencies to characterize as 'nonresponsive' information they'd just rather keep secret from the public for fear of embarrassment or scrutiny."

AILA is represented by Julie A. Murray and Allison M. Zieve of the Public Citizen Litigation Group, as well as Melissa Crow of the American Immigration Council.

The government is represented by Jane M. Lyons of the U.S. Attorney’s Office.

The case is American Immigration Lawyers Association v. Executive Office For Immigration Review et al, case number 1:13-cv-00840, in the U.S. District Court for the District of Columbia." - Law360, May 1, 2015.