Correspondence Regarding Statements of Law on Asylum in Charlotte Immigration Court

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 or from any of the Charlotte Immigration Judges (V. Stuart Couch, Barry J. Pettinato (retired), Theresa Holmes-Simmons, Rodger C. Harris, and G. William Riggs), between January 1, 2017 and the date of processing for this request, which contain any of the following exact phrases: “statement of law”, “statements of law”, “standard language addendum”, “victim of crime”, or “gang violence.”

The search should include records where the above-listed EOIR employees were included in any of the "To," "From," "CC," or "BCC" fields.

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. We 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. 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, 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 Charlotte Immigration Court has been described by advocates and media in the past as an “asylum-free zone,” and the policies and practices of the Immigration Judges in Charlotte regarding adjudications of asylum cases involving “victims of crime” and “gang violence” is highly relevant to current public debates and questions about the U.S. asylum system. These data will be used for academic research and news reporting, and this 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

Dear Mr. Schaaf:

I object to your baseless determination that my FOIA is a commercial use request, and reserve my right to challenge that determination on appeal. While it is true that my office is engaged in the practice of law, the request does not relate to any specific client which my office represents. Just to provide a bit of context for my request: the Charlotte IJ's have taken to distributing "statements of law" as addenda to their oral decisions. I am seeking records relating to the development of those "statements of law." It boggles the mind to imagine how I could use the anonymized data I am seeking to further a profit interest. 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 this request may be a complex one, although I suspect the data requested should be compilable from running a few database reports. 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. In terms of your desired "fee agreement," 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.

Please provide the responsive records as expeditiously as possible. Any further delay over more than 30 days will be construed as a constructive agency denial, and will oblige me to exercise my rights of appeal.

Sincerely,

Evan

Dear Mr. Schaaf:

Thank you for your response. I look forward to receiving the responsive records in a timely manner.

Best,

Evan

Dear Mr. Schaaf:

Thank you for your response and the information regarding estimated fees to complete the search. I would like to narrow the scope of my request. Can you provide an estimate of the fees expected if you were to search the responsive emails only for the term “statement of law”? Ideally, I would like to know how much it might cost for you to complete the search just for that term. Please let me know if this is possible. Please also confirm whether or not responsive emails from IJs Couch and Pettinato have yet been received.

Sincerely,

Evan Benz

Thank you for the update. I look forward to receiving the responsive records soon.