Charlotte IJ comms re "status docket" and "juvenile docket"

Evan Benz filed this request with the Department of Justice, Executive Office for Immigration Review of the United States of America.
Tracking #

2020-19374

Due March 6, 2020
Est. Completion None
Status
Awaiting Response

Communications

From: Evan Benz


To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Any and all written communications (electronic or otherwise) sent to, from, or between any one or more of

the current and former Charlotte Immigration Judges: V. Stuart Couch (former), Barry J. Pettinato (former), Theresa Holmes-Simmons, Rodger C. Harris, and G. William Riggs;
R. Elliott Edwards (the Court Administrator);
and/or the former ACIJ Sirce Owen,

between January 1, 2017 and the date of processing for this request, which contain the words “status docket” or “juvenile docket”

The search should include records where any of the above-listed current/former EOIR employees were included in any of the "To," "From," "CC," or "BCC" fields of an email, letter, or any other written medium. The search should also include any messages via ‘short’ or informal messaging services, regardless of whether affiliated with the official’s agency-domain level service, such as, inter alia, SMS/MMS/text messages via phones, messages via applications such as Skype, MSN/Windows Live Messenger, Snapchat, or any other “instant messaging” or other short/informal messaging service.

To clarify my request, I seek all responsive records regardless of format, medium, or physical characteristics. In conducting the search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. I seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. My request includes any attachments to these records, including e-mail attachments. If any responsive record is part of an e-mail thread, the entire thread should be disclosed to the extent the information is not otherwise properly exempt. No category of material should be omitted from search, collection, and production. If the agency has any questions about the scope of this request or the intent, please let me know.

Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016).

It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; I exercise and specifically preserve and assert my right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016).

In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered EOIR’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches. Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf. Please note that it is unlawful to have the email custodians perform their own searches.

Furthermore, agencies that have adopted the National Archives and Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but EOIR’s archiving tools would capture that email under Capstone. Accordingly, I insist that the EOIR use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. I am available to work with you to craft appropriate search terms.

If it is your position that any portion of the requested records is exempt from disclosure, I request that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Moreover, the index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987). Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).

In the event some portions of the requested records are properly exempt from disclosure, please contact me so that we can work on limiting this request to only those records that are not exempt. If it is your position that a record contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

You should institute a preservation hold on information responsive to this request. I intend to pursue all legal avenues to enforce my right of access under the FOIA, including prompt litigation if that becomes necessary. Accordingly, the EOIR is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, I welcome an opportunity to discuss this request with you before you undertake your search or incur search or duplication costs. By working together at the outset, we can decrease the likelihood of costly and time-consuming litigation in the future. If it will accelerate release of responsive records to me, please also provide responsive material on a rolling basis.
Fee Waiver Request:

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k), I request a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. 6 C.F.R. § 5.11(k)(1)(i). The overwhelming backlog of cases in the immigration court is a topic of great public interest and media coverage, and the Charlotte Immigration Court’s policies and practices regarding its docket management are highly relevant to current public debates and questions about the U.S. immigration system. These records will be used for academic research and news reporting, and thus are entirely and fundamentally for non-commercial purposes. 6 C.F.R. § 5.11(k)(1)(ii).

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Evan Benz

From: Department of Justice, Executive Office for Immigration Review

An acknowledgement letter, stating the request is being processed.

From: Evan Benz

Good afternoon: 

I am in receipt of your letter dated February 25, 2020, sent to me by email 29 days ago, relating to FOIA request 2020-19374.  This is one of the more perplexing responses that I have ever received from the EOIR FOIA. I request that you reconsider the denial of my fee waiver request, and that you also begin processing my rather straightforward request as soon as possible.  

As pertains to my fee waiver request, as previously stated, the disclosure of the requested records will shed light on the practices and policies of the Charlotte Immigration Court as it pertains to the management of the court's significant case backlog, specifically as regards cases that are placed on the "status docket" or the "juvenile docket." As also stated in my request, these records will be used for academic research and news reporting, and thus are entirely and fundamentally for non-commercial purposes. The requested documents will be made available to the general public via our firm's website (www.LODJH.com), and this request is not being made for commercial purposes.

I deliberately choose to submit this FOIA request via the MuckRock channel (rather than through my firm's FOIAonline account) to demonstrate clearly that my request is being made in the public interest, and that the disclosure and dissemination of the responsive records via MuckRock will educate the public about the workings of the federal government in general, and the immigration court system in particular -- a matter of great public interest, now more than ever.

I recognize that the requested search may be a complex one. Pursuant to the FOIA statute and normal operating procedures, I am entitled to the first 100 pages of duplication and first two hours of search to be provided without cost. Beyond those parameters, if you estimate that search or duplication costs will be over $25, you must notify me. Nevertheless, I agree to pay no more than $50 total for your office's processing of my request, after the initial two hours of search and first 100 pages of duplication.

As to your refusal to process my request, I admit I was quite gobsmacked to read that you were unable to discern the subject matter or nature of the records I am requesting. I honestly am not sure how much clearer I could be (although again, I recognize the requested search may be a somewhat complex one to conduct, it is hardly impossible). As stated in my original request, I am seeking any and all records sent between a number of EOIR employees during a specific time frame and containing the search terms "status docket" or "juvenile docket." Thus, you should search all records -- including emails, Skype messages, written letters or memoranda, etc. -- exchanged between any of the listed IJs amongst themselves, and between any of the IJs and the Court Administrator and/or the ACIJ listed. The subject matter is evident in the search terms -- any communication regarding the "status docket" or "juvenile docket" as maintained (or discussed) by the Charlotte Immigration Court. Any records containing those search terms will be related to the management of the cases on those dockets, and are thus related to the subject matter of my request.

I hope this message helps clarify my request. I hope you will grant my fee waiver request and begin processing my request ASAP.

Sincerely,

Evan

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