ICE contracts/MOUs re: South Texas Detention Facility

Beryl Lipton filed this request with the Immigration and Customs Enforcement of the United States of America.

It is a clone of this request.

Tracking # 2015-ICFO-84728
Status
Completed

Communications

From: Beryl Lipton

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All contracts (and their amendments) and memorandums of understanding entered into by Immigration and Customs Enforcement for services and activities related to the South Texas Detention Facility [https://www.ice.gov/detention-facility/south-texas-detention-facility]

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, 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,

Beryl C.D. Lipton

From: ICE

February 13, 2015 Beryl Lipton MuckRock News DEPT MR 15077 PO Box 55819 Boston, MA 02205-5819 RE:     ICE FOIA Case Number 2015-ICFO-68945 Dear Ms. Lipton: This acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE), dated February 02, 2015, and to your request for a waiver of all assessable FOIA fees. Your request was received in this office on February 13, 2015. Specifically, you requested contracts (and their amendments) and memorandums of understanding entered into by ICE for services and activities related to the South Texas Detention Facility. Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Per Section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, ICE processes FOIA requests according to their order of receipt. Although ICE’s goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10- day extension of this time period. As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, ICE will invoke a 10-day extension for your request, as allowed by Title 5 U.S.C. § 552(a)(6)(B). If you care to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner. After thoroughly reviewing your letter and request for fee waiver, I have determined that you have not presented a convincing argument that MuckRock News is entitled to a blanket waiver of applicable fees. The DHS FOIA Regulations at 6 CFR § 5.11(k)(2) set forth six factors to examine in determining whether the applicable legal standard for a fee waiver has been met.  We will consider these factors in our evaluation of your request for a fee waiver: (1) Whether the subject of the requested records concerns “the operations or activities of the government”; (2) Whether the disclosure is “likely to contribute” to an understanding of government operations or activities; (3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons; (4) Whether the contribution to public understanding of government operations or activities will be "significant"; (5) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and (6) Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor. As a requester, you bear the burden under FOIA of showing that the fee waiver requirements have been met.  Based on my review of your February 02, 2015 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because your request did not satisfy factors 4, 5, and 6.  Since your request for a fee waiver has failed to satisfy each of the required factors, I am denying your fee waiver request. Provisions of the FOIA allow us to recover part of the cost of complying with your request.  We shall charge you for records in accordance with the DHS Interim FOIA regulations as they apply to commercial requesters.  As a commercial requester, you will be charged 10 cents per page for duplication, and for search and review time at the per quarter-hour rate ($4.00 for clerical personnel, $7.00 for professional personnel, $10.25 for managerial personnel) of the searcher and reviewer.  We will construe the submission of your request as an agreement to pay up to $25.00. You will be contacted before any further fees are accrued. You have the right to appeal the determination to deny your fee waiver request. Should you wish to do so, please send your appeal following the procedures outlined in the DHS regulations at 6 Code of Federal Regulations § 5.9 and a copy of this letter to: U.S. Immigration and Customs Enforcement Office of Principal Legal Advisor U.S. Department of Homeland Security Freedom of Information Act Office 500 12th Street, S.W., Stop 5009 Washington, D.C. 20536-5009 Your appeal must be received within 60 days of the date of this letter.  Your envelope and letter should be marked “FOIA Appeal.”  Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia . ICE has queried the appropriate program offices within ICE for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Your request has been assigned reference number 2015-ICFO-68945. Please refer to this identifier in any future correspondence. You may contact this office at (866) 633-1182.
Regards,
ICE FOIA Office
Immigration and Customs Enforcement
Freedom of Information Act Office
500 12th Street, S.W., Stop 5009
Washington, D.C. 20536-5009
Telephone: 1-866-633-1182
Visit our FOIA website at
www.ice.gov/foia

From: Beryl Lipton

To Whom It May Concern:

This is an appeal under the Freedom of Information Act, 5 U.S.C. § 552.

This is an appeal of an adverse determination in response to a Freedom of Information Act (FOIA) request made to U.S. Immigration and Customs Enforcement (ICE). This appeal is being made in accordance with the Department of Homeland Security (DHS) regulations at 6 C.F.R. § 5.11. This is in compliance with instructions supplied in the attached acknowledgement letter provided by ICE in response to the initial request.

The initial FOIA request, assigned 2015-ICFO-68945, specifically requested:

“All contracts (and their amendments) and memorandums of understanding entered into by Immigration and Customs Enforcement for services and activities related to the South Texas Detention Facility [https://www.ice.gov/detention-facility/south-texas-detention-facility]”

As outlined by 6 C.F.R. § 5.11, a copy of this appeal letter has also been provided to the Associate General Counsel (General Law), Department of Homeland Security, Washington, DC 20528.

This is an appeal of the fee category assigned to Beryl C.D. Lipton, a representative of MuckRock, a collaborative news site. As a reporter in the service of MuckRock, Beryl C.D. Lipton is entitled to categorization under the Freedom of Information Act as a representative of the news media.

The acknowledgement letter received from ICE on February 13, 2015 states:

“After thoroughly reviewing your letter and request for fee waiver, I have determined that you have not presented a convincing argument that MuckRock News is entitled to a blanket waiver of applicable fees. The DHS FOIA Regulations at 6 C.F.R. § 5.11(k)(2) set forth six factors to examine in determining whether the applicable legal standard for a fee waiver has been met.”

The blanket denial of a “blanket waiver” for requests originating from MuckRock, debatable on its own grounds, does not address the more pertinent elements of categorization at issue in this current FOIA request, namely the appropriate categorization of the specific requester from whom the initial inquiry comes.

Beryl C.D. Lipton satisfies the requirements outlined in the definition of “a representative of the news media” explicitly described by 6 C.F.R. § 5.11(b)(6). A representative of the news media, as outlined by 6 C.F.R. § 5.11(b)(6), is defined to be the following:


Representative of the news media, or news media requester, means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but components shall also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial use. However, a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.

Beryl C.D. Lipton, as a reporter employed by MuckRock—a striking journalistic organization that actively combines the creation of news articles with the facilitation of the collection and dissemination of primary materials related to governmental operations—qualifies as a “person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.” “News,” as defined above, would be a category appropriately used to describe materials published by MuckRock with the byline “Beryl Lipton” or “Beryl C.D. Lipton,” despite the fault of subjectivity allowed by a phrase such as “of current interest to the public” in other instances. It would be appropriately assumed that requests made by Beryl C.D. Lipton are done so in the service of news gathering for use in the creation of further news articles.

The category of “news media entities” appropriately encompasses the operations of MuckRock, which, at the least, provides its materials “to the public at large” and does so at a rate more impressive and substantial than other entities that may be considered news media entities, like the hypothetical “television or radio stations” described above; the use of an internet platform guarantees that the news sources provided by MuckRock are easily accessible and guarded against the temporality that limits the effectiveness of dissemination provided by television, radio, and other transient means of broadcast. Further, MuckRock disperses its articles and associated assets without the financial limitations imposed on an audience by the need for “purchase or subscription by the general public” (allowed for in the definition); materials obtained through the Freedom of Information Act and others public records laws and news articles generated as a result are provided by MuckRock without charge.

These points related to the appropriate fee category to be applied to Beryl C.D. Lipton speak to the general journalistic efforts of the requester and the organization. However, in regards to this particular request and its particular importance as part of a larger news gathering effort of public concern, more clarification can be provided.

As stated above, the acknowledgment letter received for 2015-ICFO-68945 stated:

“After thoroughly reviewing your letter and request for fee waiver, I have determined that you have not presented a convincing argument that MuckRock News is entitled to a blanket waiver of applicable fees. The DHS FOIA Regulations at 6 C.F.R. § 5.11(k)(2) set forth six factors to examine in determining whether the applicable legal standard for a fee waiver has been met.”

It further stated:

“Based on my review of your February 02, 2015 letter and for the reason stated herein, I have determined that your fee waiver request is deficient because your request did not satisfy factors 4, 5, and 6.”

The following paragraph describes the contents of 6 C.F.R. § 5.11(k) for reference:


(k) Requirements for waiver or reduction of fees.

(1) Records responsive to a request will be furnished without charge or at a charge reduced below that established under paragraph (c) of this section where a component determines, based on all available information, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.

(2) To determine whether the first fee waiver requirement is met, components will consider the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. Components shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.

(3) To determine whether the second fee waiver requirement is met, components will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. Components shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. Components ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.

(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.

(5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and (3) of this section, insofar as they apply to each request. Components will exercise their discretion to consider the cost-effectiveness of their investment of administrative resources in this decision-making process, however, in deciding to grant waivers or reductions of fees.

Factors four, five, and six as described by ICE:


(4) Whether the contribution to public understanding of government operations or activities will be “significant”;

(5) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and

(6) Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor.

The initial FOIA request, assigned 2015-ICFO-68945, specifically requested:

“All contracts (and their amendments) and memorandums of understanding entered into by Immigration and Customs Enforcement for services and activities related to the South Texas Detention Facility [https://www.ice.gov/detention-facility/south-texas-detention-facility]”

This request was made as part of an ongoing investigation and illumination of the for-profit incarceration practice in the United States. As representatives of U.S. Immigrations and Customs Enforcement and the Department of Homeland Security must be aware, the privatization of facilities and services related to the incarceration and detention of individuals has increased in striking correlation with the national prison population.

In the State of the Union address on January 20, 2015, President Barack Obama stated:

“Surely we can agree it’s a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America’s criminal justice system so that it protects and serves us all.”

That the President of the United States has recognized the need for reform of the criminal justice system need not be the ultimate word on the timeliness of this matter, but it certainly highlights the need for more clear information regarding the moving parts involved in considering its reconstruction. This, rationally, would include an inquiry into the businesses that complicate the philosophical and practical debates that already burden a government-run correctional system; involving individual corporate financial incentives could be counter to grander, national goals.

For an important discussion to take place on these national, systemic issues, the public must necessarily be better educated, and disclosure of the requested materials would only provide the public with a greater ability to be so in the form of primary documents and the journalistic output created as a result. As part of the effort to “effectively convey information to the public,” the materials provided in response to this request will be part of MuckRock’s ongoing efforts to contextualize this information, as demonstrated in part by recent articles and map-based infographics. (For reference: https://www.muckrock.com/news/archives/2014/jul/23/introducing-private-prison-project/; https://www.muckrock.com/news/archives/2015/jan/15/osha-complaints-show-awful-conditions-insides-priv/; https://www.muckrock.com/news/archives/2015/feb/03/private-prison/). Further, since the corporations tasked with punishments otherwise only within the power of the government are not subject to the Freedom of Information Act, it is incumbent upon the agencies that employ them to make available relevant materials, particularly those, such as contracts, that transfer tax dollars and disciplinary powers to a private entity.

Regarding the fourth element, deemed deficient by ICE, the subjective biases potential in determination of a judgement of significance need not be a matter in this regard, as any contribution to the public’s understanding of the commercial relationship between the federal government and prison corporations would be “significant” when compared to the relatively nonexistent awareness and understanding that characterize the public’s current knowledge.

Factors five and six rely upon the determination of a commercial interest in the making of the request. As the previous discussions of “news media” status and the importance of these materials and their subject matter to public understanding should suffice to satisfy doubts as to the primary objective of this Freedom of Information Act request, it is generous to further draw attention to the absurdity inherent in the idea that any potential for hypothetical tangential commercial benefit considered as a possibility in conjunction with the fulfillment of this request be considered more than the consequent benefits associated with public interest in a news piece and increased external efforts to be further informed.

As a designation of “news media requester” would be most appropriate for this request, at the least, and a further full fee waiver would be no less appropriate on the terms set forth by the Freedom of Information Act, it is expected that the result of this appeal should provide for no further fees than those necessitated by duplication. As set forth by 6 C.F.R. § 5.11(d):


(d) Restrictions on charging fees.
(1) No search fee will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(3) Except for requesters seeking records for a commercial use, components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).

Thank you for your time. Please reach out should any further clarification be necessary.

Sincerely,

Beryl C.D. Lipton

From: Immigration and Customs Enforcement

A letter stating that the request appeal has been received and is being processed.

From: Immigration and Customs Enforcement

A letter stating that the request appeal has been succesful.

From: ICE

April 08, 2015 Beryl Lipton MuckRock News DEPT MR 15077 PO Box 55819 Boston, MA 02205-5819 RE:     ICE FOIA Case Number 2015-ICFO-68945This e-mail is in regards to your February 02, 2015 ICE FOIA request for
contracts (and their amendments) and memorandums of understanding entered into by ICE for services and activities related to the South Texas Detention Facility.
In conducting a search for responsive records, the ICE FOIA office has determined that further clarification is needed regarding your request. Please provide a date range for records you are seeking. Please provide the ICE FOIA office with a response as soon as possible to avoid any further delay in the processing of your request. If a response is not received within 10 business days, your request will be administratively closed.
Sincerely,
ICE FOIA

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 2, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-ICFO-68945.

Thank you for your help.

From: Beryl Lipton

Hello,

A request for clarification regarding this request was sent to a completely wrong email address and so was not appropriately received. Please reopen this request or specify the need for clarification.

Thank you.

From: Beryl Lipton

Hello,

A request for clarification regarding this request was sent to a completely wrong email address and so was not appropriately received. Please reopen this request or specify the need for clarification.

Thank you.

From: Beryl Lipton

Hello,

I would like to follow up with clarification regarding the appropriate method of communication for this FOIA request. This is a request for:

"All contracts (and their amendments) and memorandums of understanding entered into by Immigration and Customs Enforcement for services and activities related to the South Texas Detention Facility [https://www.ice.gov/detention-facility/south-texas-detention-facility]"

Your office assigned this request tracking number 2015-ICFO-68945.

All electronic communications regarding this request should be sent to: requests@muckrock.com.

Thank you for your time. Confirmation of this and my previous message would be appreciated.

Best,
Beryl

From: ICE-FOIA

May 07, 2015 Beryl Lipton MuckRock News DEPT MR 15077 PO Box 55819 Boston, MA 02205-5819 RE:     ICE FOIA Case Number 2015-ICFO-68945This e-mail is in regards to your February 02, 2015 ICE FOIA request for
contracts (and their amendments) and memorandums of understanding entered into by ICE for services and activities related to the South Texas Detention Facility.
In conducting a search for responsive records, the ICE FOIA office has determined that further clarification is needed regarding your request.
Please provide a date range for records you are seeking. Please provide the ICE FOIA office with a response as soon as possible to avoid any further delay in the processing of your request. If a response is not received within 10 business days, your request will be administratively closed.
Sincerely,
ICE FOIA

From: ICE-FOIA

Good morning,

This case was reopened and ICE’s request for clarification was resent to requests@muckrock.com<mailto:requests@muckrock.com>.

Sincerely,

ICE FOIA

From: Beryl Lipton

Hello,

Is further clarification still required for this request? Specifically, I asked for:

All contracts (and their amendments) and memorandums of understanding entered into by Immigration and Customs Enforcement for services and activities related to the South Texas Detention Facility [https://www.ice.gov/detention-facility/south-texas-detention-facility]

Please let me know.

Thank you!
Beryl

From: Beryl Lipton

Hello,

Another version of this request was submitted to your office and was assigned Tracking Number 2015-ICFO-84728. However, it was then determined that the newest request for materials related to the contracting of South Texas Detention Facility was a duplicate of this request, assigned Tracking Number 2015-ICFO-68945. Could you please clarify which of the tracking numbers is now the appropriate one to use? Also, could you please clarify whether additional information is required regarding this request? Specifically, this is a request for:

All contracts (and their amendments) and memorandums of understanding entered into by Immigration and Customs Enforcement for services and activities related to the South Texas Family Residential Center (https://www.cca.com/facilities/south-texas-family-residential-center). Please include all associated Requests for Proposal, responses, exhibits, and amendments.

Thank you very much for your help.

Best wishes,
Beryl C.D. Lipton

From: ICE-FOIA

Ms. Lipton,

Please use 2015-ICFO-84728 to refer to the Residential Center request. It has been tasked to the appropriate program office for responsive records.

Sincerely,
ICE FOIA

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 2, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-ICFO-84728.

Thank you for your help.

From: ICE-FOIA

Good afternoon,

Your request is currently in the queue for an analyst review.

Sincerely,
ICE/FOIA

From: Beryl Lipton

Hi there,

I now realize that my request may have overemphasized my interest in agreements with private entities. I should have clarified that my request for contracts/memorandums of understanding should have specified that responsive materials should include such agreements entered into with other agencies of local, state, and federal government. Please let me know how to proceed.

Thank you!
Beryl

From: ICE-FOIA

Good afternoon,

Your request is currently in the queue for an analyst review.

Sincerely,
ICE/FOIA

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 2, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-ICFO-84728.

Thanks for your help, and let me know if further clarification is needed.

From: ICE-FOIA

Good afternoon,

Your request is currently under review by an analyst.

Sincerely,
ICE/FOIA

From: ICE-FOIA

Good afternoon,

Your request is currently being reviewed by an analyst.

Sincerely,
ICE/FOIA

From: ICE-FOIA

Good afternoon,

This request is under an analyst review.

Sincerely,
ICE/FOIA

From: ICE-FOIA

Good morning, Mr. Lipton:

Your FOIA/PA request in still in-progress, and in the final stage(s) of processing and response.

Please know that we will processing your request as expeditiously as possible. Upon completion of the processing, all documents that can be released will be made available to you at the earliest possible date. We apologize for the delay you are experiencing and appreciate your continued patience. Your request has been assigned reference number 2015-ICFO-84728. Please refer to this identifier in any future correspondence.

Regards,

ICE FOIA Office
Immigration and Customs Enforcement
Freedom of Information Act Office
500 12th Street, S.W., Stop 5009
Washington, D.C. 20536-5009
Telephone: 1-866-633-1182v
Visit our FOIA website at www.ice.gov/foia<http://www.ice.gov/foia>

From: ICE-FOIA

Good afternoon,

This case is closed. The response was emailed to:
requests@muckrock.com<mailto:requests@muckrock.com> on 01/06/16.

Sincerely,
ICE/FOIA

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