Death in Custody Reports (United States Customs and Border Protection)
| Tracking # |
CBP-AP-2024-001100 CBP-FO-2023-083502 |
| Multi Request | Death in Custody Reports |
| Submitted | May 12, 2023 |
| Due | June 12, 2023 |
| Est. Completion | June 20, 2024 |
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Communications
From: Andrew Free
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
Section 3(a)(2)(B) of the Death in Custody Reporting Act of 2013, 42 USC 13727a, provides: the “head of each Federal law enforcement agency shall submit to the Attorney General a report . . . that contains information regarding the death of any person who is— . . . (2) en route to be incarcerated or detained, or is incarcerated or detained at—(A) any facility (including ANY IMMIGRATION OR JUVENILE FACILITY) pursuant to a contract with such Federal law enforcement agency.”
Please provide all notifications your agency has made pursuant to this statute beginning February 1, 2015 and continuing until the date of your tasking an adequate search in response to this request.
Thank you,
#DetentionKills Transparency Initiative
Al Otro Lado
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,
Andrew Free
From: United States Customs and Border Protection
Andrew FreeN/AMuckRock News, DEPT MR145765263 Huntington AveBoston, Massachusetts 0211505/16/2023CBP-FO-2023-083502Dear Andrew Free: This notice acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) received on 5/15/2023. Please use the following unique FOIA tracking number CBP-FO-2023-083502 to track the status of your request. If you have not already done so, you must create a SecureRelease account. This is the only method available to check the status of your pending FOIA request.Provisions of the Act allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS FOIA regulations outlined on the DHS website, https://www.federalregister.gov/documents/2016/11/22/2016-28095/freedom-of-information-act-regulations. By submitting your request, you have agreed to pay up to $25.00 in applicable processing fees, if any fees associated with your request exceed this amount, CBP shall contact you. Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, CBP processes FOIA requests according to their order of receipt. Although CBP’s goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances pursuant to 6 C.F.R. Part 5 § 5.5(c). CBP’s FOIA Division is working hard to reduce the amount of time necessary to respond to FOIA requests. We truly appreciate your continued patience. For additional information please consult CBP FOIA website please click on FOIA Act Resources or visit http://www.cbp.gov/site-policy-notices/foia. Sincerely,U.S. Customs and Border Protection
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From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on May 15, 2023. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-FO-2023-083502.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on May 15, 2023. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-FO-2023-083502.
Thanks for your help, and let me know if further clarification is needed.
From: United States Customs and Border Protection
Andrew Free
N/A
MuckRock News, DEPT MR145765
263 Huntington Ave
Boston, Massachusetts 02115
02/07/2024
CBP-FO-2023-083502
Dear Andrew Free:
A search of CBP databases produced records responsive to your Freedom of Information Act (FOIA) request CBP-FO-2023-083502, requesting records maintained by CBP.
CBP has determined that the responsive records are partially releasable, pursuant to Title 5 U.S.C. § 552 and have applied the appropriate exemptions notated below:
Exemption Summary:
(b)(6) (b)(7)(C)
Pursuant to exemption (b)(6) (b)(7)(C), 0 pages have been withheld in full and 8 pages in part.
Permits withholding of records and information about individuals when disclosure would be a clearly unwarranted invasion of personal privacy.
Permits withholding of records when an unwarranted invasion of personal privacy could reasonably be expected.
Pursuant to DHS Instruction 262-11-004, FOIA Officers at DHS have been instructed to withhold personally identifiable information (PII) and sensitive personally identifiable information (SPII) of DHS personnel unless a determination is made that the disclosure does not raise security or privacy concerns, or if those concerns are outweighed by any public interest in that information. This policy is available online. Under this policy, the names of senior leaders, spokespersons, and political appointees are generally releasable. With respect to this FOIA request, DHS may have applied FOIA Exemption 6 to protect PII of DHS employees, including names and contact information. To the extent that has DHS withheld employee PII within these records, it has been determined that the employee(s) has/have substantial and legitimate privacy interests and that these interests are not outweighed by any public interest in the operations of the Department.
For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.
You may notice a recent date on the attached records. This is the date our processor queried the record in response to your FOIA request. For clarity, it is not the date the agency first created the record.
The following item(s) also apply to your request:
• Approximately ZERO pages were withheld in their entirety.
• Fees: In the processing of this FOIA request, no fees are being assessed.
• Other:
This completes the CBP response to your request. You may contact CBP's FOIA Public Liaison, Charlyse Hoskins, by sending an email via your SecureRelease account, mailing a letter to 90 K St, NE MS 1181, Washington DC, 20229 or by calling 202-325-0150. (If you need telecommunication relay service (TRS) assistance to communicate with the CBP FOIA Office and you are in the United States, please dial 711 to obtain TRS assistance and notify the Communications Assistant that you want to contact the CBP FOIA Office at the telephone number (202) 325-0150). The FOIA Public Liaison is able to assist in advising on the requirements for submitting a request, assist with narrowing the scope of a request, assist in reducing delays by advising the requester on the type of records to request, suggesting agency offices that may have responsive records and receive questions or concerns about the agency’s FOIA process. Please notate file number CBP-FO-2023-083502 on any future correspondence to CBP related to this request.
If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.8. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via your SecureRelease account . If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia. Additional information can be found at the following link https://www.cbp.gov/sites/default/files/assets/documents/2019-Dec/definitions-exemptions-foia_0.pdf.
Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Please note that contacting the CBP FOIA Public Liaison or OGIS does not stop the 90-day appeal clock and is not a substitute for filing an administrative appeal.
Please note that this message has been sent from an unmonitored e-mail account. Any messages sent to this account will not be read.
Sincerely,
U.S. Customs and Border Protection
From: Andrew Free
Thank you very much for this response!
We respectfully appeal on several grounds.
First, we appeal the application of Exemptions 6 and 7C.
Names of the deceased are not subject to b6b7c redactions, because the public’s interest in understanding the circumstances surrounding death in CBP custody outweighs the decedent’s interest in privacy. Indeed, multiple FOIA courts and other DHS agency components agree that privacy interests of the individual largely extinguish at death. Even if these names were plausibly subject to withholding under these exemptions, CBP has not alleged or articulated a foreseeable harm from releasing the information. Indeed, it cannot. That is because the agency released the very names it says are protected in the first three columns by failing to redact them beginning at page 9. Whatever foreseeable harm the agency may have been able to hypothetically aver would follow release of these names is one that the agency itself has now facilitated by releasing them.
Please lift the b7b7C redactions on the first 8 pages.
Second, we appeal the adequacy of search on several grounds. As an initial matter, it appears these records only cover the period beginning in October 2021 and continuing through July 2022. But our request sought “all notifications your agency has made pursuant to this statute beginning February 1, 2015 and continuing until the date of your tasking an adequate search in response to this request.” We filed that request on May 12, 2023, and the agency acknowledged on May 16, 2023. Thus, the agency’s response inexplicably omits records of CBP Death Notifications between 2/1/2015 and 10/11/2021, as well as notifications between 7/2/2022 and at least 5/16/2023 (assuming the agency tasked the search the day it acknowledged receiving our FOIA request. The request covered a 99.5-month period, but the response encompasses only a 9-month period. So the agency produced records covering a time period that’s less than 1/11th of the one we requested.
That 1/11th, 9-month search period reflected in this production includes records of more than 40 deaths. Extrapolating this figure would records of approaching 500 deaths in CBP custody, depending on a host of variables.
Each of those human beings had a name and a story. At least 4 of the people who died were children. At least six of the people who died reflect a “manner of death” as “homicide.” At least 5 of these deaths are listed as “Wall Fall”. At least 4 people drowned. At least 15 people died in “pursuit.”
We note that CBP described at least And for each of them, CBP bore a legal obligation to notify the Department of Justice about at least some of that information. It also bears a legal obligation under the Freedom of Information Act to provide this information to the public.
Please re-task a search to ensure all of the remaining 90+ months of the requested records are produced.
Third, we appeal the adequacy of search to the extent that it aggregates into a spreadsheet the death notification records we requested. Each death requires a separate notification, so for each death, we expect there would be a separate record. That is what we requested. But CBP did not provide it. However, to the extent the spreadsheet CBP released covers all information included in the CBP Death Notification, and CBP will attest notifications were made, we would be willing to resolve this appeal without receiving all individual notifications IF the agency would provide a single exemplar document from a single death of the agency’s choosing.
Fourth, we appeal the agency’s provision of the record in a format other than the one in which the agency maintains and printed it. This document is clearly a spreadsheet printed into .pdf. Please provide this document in excel format.
Pursuant to the National Security Counselors case, I hereby clarify that I will be the requestor going forward, and Al Otro Lado’s role in this request is complete.
Pursuant to 6 CFR 5.5(e), we hereby request expedited processing of our appeal, and in support of that request, I state the following under penalty of perjury pursuant to 28 USC 1746 that the following is true and correct to the best of my knowledge and understanding:
1. I am a member of the media primarily engaged in information dissemination.
2. As part of my journalism, I gather and publish information regarding deaths in CBP custody.
3. There is an urgent need to inform the public about deaths in CBP custody for the period requested.
4. The issue of law enforcement agencies’ noncompliance with their obligations under the Death in Custody Reporting Act has been the subject of widespread media attention in which actual or alleged government wrongdoing has occurred, including within DHS. Senator Jon Ossoff held a Senate Permanent Subcommittee on Investigations hearing regarding this issue in 2021, and the news media has covered it widely.
5. CBP is obligated to report deaths in custody to the Department of Justice.
6. The records CBP provided in response to this request raise serious questions as to CBP’s compliance with its obligations under this statute.
7. I am personally aware of at least one in-custody CBP death that all available records and investigation demonstrate was never reported to Congress, the public, or the Department of Justice.
8. This death occurred in the period where CBP FOIA failed to produce records in response to this request.
9. The prevailing narrative within US policy circles paints the US-Mexico border as being “in crisis”. Some politicians even characterize migrant entries as an “invasion.”
10. Promptly accessing government data regarding the extent of the “crisis” and the death toll of the “invasion” is vital to informing the public about this matter of widespread public concern and media interest.
11. If the agency takes as long to process this appeal and provide records on remand as it did to provide an initial response, the public will once again be forced to vote on who will determine the future of CBP’s approach to deaths in migrant custody without access to basic factual information the government collects.
12. I will immediately publish and widely disseminate records I receive.
Thank you for your prompt consideration of this appeal and expedited processing request.
Sincerely,
R. Andrew Free
From: United States Customs and Border Protection
03/14/2024
Dear Andrew Free,
This message confirms receipt of the Freedom of Information Act (FOIA) appeal that you submitted to U.S. Customs and Border Protection on 2/8/2024 and received by the
agency on 3/14/2024. We will process your appeal in the order it was received and as expeditiously as possible. Please reference Case File No. CBP-AP-2024-001100 in any
future communications with the agency related to this appeal.
We strongly recommend that you submit future requests and appeals via our online FOIA submission portal, accessible at https://www.securerelease.us/. Creating an account will allow for real time tracking of your requests and appeals and easier access to any decisions or records issued by the agency.
Please note that this message has been sent from an unmonitored e-mail account. Any messages sent to this account will not be read.
Most Sincerely,
CBP FOIA Appeals
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on May 15, 2023. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-AP-2024-001100.
Thanks for your help, and let me know if further clarification is needed.
From: United States Customs and Border Protection
Hello, Mr. Free.
This message confirms receipt of your Freedom of Information Act appeal challenging the determination issued by U.S. Customs and Border Protection's FOIA Division as related to request file number CBP-FO-2023-083502. Your appeal tracking number is CBP-AP-2024-001100. Please reference that tracking number in any subsequent communications with the agency related to your appeal. Your appeal has been assigned to a CBP FOIA Appeals attorney and will be processed in the order it was received and as expeditiously as possible.
Your appeal is a priority, and we will make every effort to respond to your appeal as soon as possible.
Most Sincerely,
CBP FOIA Appeals
From: United States Customs and Border Protection
Dear Mr. Free,
I am reaching out to provide you an update on your FOIA appeal CBP-AP-2024-001100 (appeal of FOIA request CBP-FO-2023-083502).
Under 6 CFR 5.5(c), “whenever the statutory time limits for processing a request cannot be met because of 'unusual circumstances,' as defined in the FOIA, and the component extends the time limits on that basis, the component shall, before expiration of the twenty-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed.” I am reaching out to provide you with this notification.
Due to the necessity for consultation with multiple offices within CBP, we are extending the deadline to respond to your appeal. The estimated time frame for completion of your appeal is by June 20, 2024; however, this is subject to change depending on any delay in response regarding the consultations. You will receive an additional status notification if the time frame must be extended past June 20, 2024.
Your appeal is a priority, and we will make every effort to respond to your appeal as soon as possible. Thank you for your patience.
Sincerely,
CBP FOIA Appeals
From: Andrew Free
Sorry, but you don't get to extend the deadline beyond ten working days unless they passed another FOIA statute we're unaware of. The appeal response is late and we consider it constructively exhausted. If you have authority to the contrary, please advise us.
Thank you,
Andrew Free
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