ICE FOIA "Too Broad" Records

Andrew Free filed this request with the Immigration and Customs Enforcement of the United States of America.
Tracking #

2020-ICFO-21220, 2020-ICAP-00440

2020-ICFO-21220

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

Communications

From: Andrew Free

To Whom It May Concern:

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

In November of 2016, the Department of Homeland Security amended the agency's Freedom of Information Act regulations under the guise of inter alia, "streamlining the language of several procedural provisions". See 81 Fed. Reg. 83625 (Nov. 22, 2016). The new regulations impose requirements on requestors with respect to describing the records sought that are not found in the text of the Freedom of Information Act. They also allow ICE to administratively close FOIA requests where requestors fail to respond to the agency's assertion that the request is too broad. The regulations provide for no right of appeal of the administratively closure decision.

Functionally, these regulatory changes allow ICE to unilaterally assert that a request is too broad or not described with sufficient specificity to allow the agency to conduct a search for records, and then place the burden on the requestor to promptly respond or else have their request shunted into a bureaucratic limbo. In the event the administrative appeal is sustained and the request remanded back to ICE for processing, the agency's FOIA office essentially buys itself a second bite at the Act's timing requirements, with which it is already serially and egregiously non-compliant.

The experience of FOIA requestors post-November 2016 has been that the agency's updated regulations offered ICE's FOIA office a pretext to deny or administratively close request that the agency incorrectly and unlawfully characterizes as being "too broad". When requestors have appealed the initial "too broad" determination, this determinations are almost uniformly reversed -- calling into question the process by which ICE FOIA makes the determination in the first place. Illustrative examples of this practice, with FOIA case numbers, are attached to this request.

In the context of a prior request for any ICE training materials or guidance for determining when a request is too broad, 2017-ICFO-29691, the agency simply directed the requestor to the text of the Freedom of Information Act and DHS's implementing regulations.

DHS has not publicly disclosed the numbers of "administratively closed" requests in its annual reporting to DOJ and Congress.

On behalf of several media clients and non-profit organizations, I therefore request the following records:

1. Any record showing the total number of initial "too broad" determination letters ICE FOIA sent to requestors during FY16-19.
2. Any record showing the total number of responses by requestors within the 30-day timeframe set forth in ICE FOIA's "too broad" determination letters during FY16-19.
3. Any record showing the total number of FOIA requests ICE administratively closed based on a requestor's failure to respond to the agency's "too broad" determinations during FY16-19.
4. Any record showing the total number of administrative appeals ICE FOIA received challenging the agency's "too broad" determinations during FY16-19.
5. Any record showing the total number of remands of administrative appeals of ICE FOIA "too broad" determination during FY16-19.
6. Any record showing the total number of FOIA lawsuits filed since November 22, 2016, challenging the agency's "too broad" determination, or its decision to administratively close a case for failure to respond to such a letter.
7. Any training, guidance, checklist, template, or other document used by ICE FOIA to document the language in the FOIA request that falls short of the requirements set forth by DHS in 6 C.F.R. 5.3(b).
8. Any communications, reports, dashboards, or modules demonstrating the total number of administratively closed FOIA requests currently pending before ICE based on a "too broad" determination.

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: Immigration and Customs Enforcement

Submitted on Thursday, January 9, 2020 - 03:26
Submitted by user: Anonymous
Submitted values are:

Select the DHS component you wish to submit your request to: : U.S.
Immigration and Customs Enforcement (ICE)
Title:
First Name: Andrew
Middle Initial:
Last Name: Free
Suffix:
Email Address: requests@muckrock.com
Country: United States
Address 1: MuckRock News DEPT MR 85180
Address 2: 411A Highland Ave
City: Somerville
State: Massachusetts
Zip Code: 02144
Telephone Number: 617-299-1832
Fax Number:
Are you requesting records on yourself? No
If yes, you must check the perjury statement:
By initialing here you are providing your electronic signature.:
Please describe the records you are seeking as clearly and precisely as
possible:
To Whom It May Concern:

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

In November of 2016, the Department of Homeland Security amended the agency's
Freedom of Information Act regulations under the guise of inter alia,
"streamlining the language of several procedural provisions". See 81 Fed.
Reg. 83625 (Nov. 22, 2016). The new regulations impose requirements on
requestors with respect to describing the records sought that are not found
in the text of the Freedom of Information Act. They also allow ICE to
administratively close FOIA requests where requestors fail to respond to the
agency's assertion that the request is too broad. The regulations provide for
no right of appeal of the administratively closure decision.

Functionally, these regulatory changes allow ICE to unilaterally assert that
a request is too broad or not described with sufficient specificity to allow
the agency to conduct a search for records, and then place the burden on the
requestor to promptly respond or else have their request shunted into a
bureaucratic limbo. In the event the administrative appeal is sustained and
the request remanded back to ICE for processing, the agency's FOIA office
essentially buys itself a second bite at the Act's timing requirements, with
which it is already serially and egregiously non-compliant.

The experience of FOIA requestors post-November 2016 has been that the
agency's updated regulations offered ICE's FOIA office a pretext to deny or
administratively close request that the agency incorrectly and unlawfully
characterizes as being "too broad". When requestors have appealed the initial
"too broad" determination, this determinations are almost uniformly reversed
-- calling into question the process by which ICE FOIA makes the
determination in the first place. Illustrative examples of this practice,
with FOIA case numbers, are attached to this request.

In the context of a prior request for any ICE training materials or guidance
for determining when a request is too broad, 2017-ICFO-29691, the agency
simply directed the requestor to the text of the Freedom of Information Act
and DHS's implementing regulations.

DHS has not publicly disclosed the numbers of "administratively closed"
requests in its annual reporting to DOJ and Congress.

On behalf of several media clients and non-profit organizations, I therefore
request the following records:

1. Any record showing the total number of initial "too broad" determination
letters ICE FOIA sent to requestors during FY16-19.
2. Any record showing the total number of responses by requestors within the
30-day timeframe set forth in ICE FOIA's "too broad" determination letters
during FY16-19.
3. Any record showing the total number of FOIA requests ICE administratively
closed based on a requestor's failure to respond to the agency's "too broad"
determinations during FY16-19.
4. Any record showing the total number of administrative appeals ICE FOIA
received challenging the agency's "too broad" determinations during FY16-19.
5. Any record showing the total number of remands of administrative appeals
of ICE FOIA "too broad" determination during FY16-19.
6. Any record showing the total number of FOIA lawsuits filed since November
22, 2016, challenging the agency's "too broad" determination, or its decision
to administratively close a case for failure to respond to such a letter.
7. Any training, guidance, checklist, template, or other document used by ICE
FOIA to document the language in the FOIA request that falls short of the
requirements set forth by DHS in 6 C.F.R. 5.3(b).
8. Any communications, reports, dashboards, or modules demonstrating the
total number of administratively closed FOIA requests currently pending
before ICE based on a "too broad" determination.

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

Attachments:

https://cdn.muckrock.com/outbound_composer_attachments/ImmCivilRights/78962/ICE20Response20to20Requester20Records20Publically20Available201.pdf
https://cdn.muckrock.com/outbound_composer_attachments/ImmCivilRights/78962/Free_Letter_2019-hqap-00299_.pdf
Upload documents directly:
https://https://www.muckrock.comhttps://accounts.muckrock.com/accounts/login/?url_auth_token=AAAVK9mH4BSG8tmO0HOip57Abyc%3A1ipT6F%3As4pUP5rLWs9UiHg2hIIZL1cFblM&next=https%3A%2F%2Fwww.muckrock.com%2Faccounts%2Flogin%2F%3Fnext%3D%252Faccounts%252Fagency_login%252Fimmigration-and-customs-enforcement-133%252Fice-foia-too-broad-records-85180%252F%253Femail%253DICE-FOIA%252540dhs.gov
I am willing to pay fees for this request up to the amount of: $: 25
Select from the list below: An individual seeking information for personal
use and not for commercial use.
I request a waiver of all fees for this request.:
Please provide an explanation for your request for a fee waiver:
Please select and describe in detail if you believe your request warrants
expeditious handling:
Please provide information to support your selection:

From: Immigration and Customs Enforcement

February 06, 2020 Andrew Free MuckRock News DEPT MR 85180 411A Highland Ave Somerville, MA 02144 RE:     ICE FOIA Case Number 2020-ICFO-21220 Dear Mr. Free: This acknowledges receipt of your January 10, 2020, Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE), for seeking records regarding several points concerning request deemed as "too broad" during FY 2016-2019 (please see request for further details).  Your request was received in this office on January 10, 2020. 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. 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 media requesters.  As a media requester, you will be charged 10 cents per page for duplication; the first 100 pages are free.  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. We have 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 2020-ICFO-21220. Please refer to this identifier in any future correspondence. To check the status of an ICE FOIA/PA request, please visit . Please note that to check the status of a request, you must enter the 2020-ICFO-21220 tracking number. If you need any further assistance or would like to discuss any aspect of your request, please contact the FOIA office. You may send an e-mail to ice-foia@ice.dhs.gov, call toll free (866) 633-1182, or you may contact our FOIA Public Liaison, Fernando Pineiro, in the same manner. Additionally, you have a right to 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. (http://www.dhs.gov/foia-status) http://www.dhs.gov/foia-status
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: Immigration and Customs Enforcement

Dear Andrew Free,
The password to open the responsive records delivered in a separate email for 2020-ICFO-21220 is listed below. If you do not receive the email containing the responsive documents within a reasonable timeframe please contact our office at foia-obim@hq.dhs.gov. (mailto:foia-obim@hq.dhs.gov)
Document Password: Z952ikez
Sincerely, OBIM FOIA Branch

From: Immigration and Customs Enforcement

Mr. Free,

ICE's final response to your FOIA request, 2020-ICFO-21220, for seeking records regarding several points concerning request deemed as "too broad" during FY 2016-2019 (please see request for further details) is attached.

Please note that the attachment may be password protected. If you are prompted to enter a password when opening the attachment and you did not receive a password it may be in your junk/spam folder.

Sincerely,
ICE FOIA

From: Andrew Free

I hereby appeal the adequacy of the agency's search, and the legality of the agency's withholdings.

First, ICE FOIA claims, incredibly, that it does not maintain records guiding FOIA officers on when a request is "too broad" under 6 CFR 5.3(b). This claim, if true, would establish a serious failure in the agency's training and supervision of its FOIA office, and is completely inconsistent with the agency's obligations under the Act.

Second, ICE FOIA contends that its 29-page response to Item 3 constitutes the only responsive record it has to this request. As an initial matter, ICE's failure to produce the records in native format (likely a .csv or .xls file) violates the Act. Substantively however, the agency's production of some 1100 requests it says the FOIA office closed as "too broad" under 6 C.F.R. 5.3(b) demonstrates why the agency's refusal to search for and produce records responsive to Items 1-2 and 4-8 cannot possibly be true. That's because the 29-page pdf does not contain the terms 'too broad" or "5.3(b)", or any other term that would explain how these particular ~1100 records came to be designated as responsive to Item 3. Clearly, they were printouts from a system of records that ICE FOIA presumably queried. What was the basis for that query? How did that query produce these results? If ICE FOIA is to be believed that it doesn't track or maintain records responsive to Items 1-2 and 4-8, and that these 29 pages are the ONLY responsive documents that would be returned by a search reasonably calculated to lead to all responsive records, how can ICE FOIA explain the lack of any reference to the actual terms of Item 3 in the pdf if produced?

Please process this appeal within the period allowed by law and remand to the agency for re-tasking and re-processing consistent with the Act.

From: Immigration and Customs Enforcement

**Please Do Not Respond Directly -This email has been sent on behalf of ice-foia@dhs.gov**

We have received your Freedom of Information Act request for appealing the adequacy of the search and withholdings of records regarding several points concerning request deemed as "too broad" during FY 2016-2019 (please see request for further details) and have assigned it tracking number 2020-ICAP-00440. Please refer to the attached Acknowledgement Letter for more information.

ICE FOIA.

From: Immigration and Customs Enforcement

Mr. Free,

ICE's final response to your FOIA request, 2020-ICAP-00440, for appealing the adequacy of the search and withholdings of records regarding several points concerning request deemed as "too broad" during FY 2016-2019 (please see request for further details) is attached.

Please note that the attachment may be password protected. If you are prompted to enter a password when opening the attachment and you did not receive a password it may be in your junk/spam folder.

Sincerely,
ICE FOIA

  • FOIA Appeal 2020-ICAP-00440, 2020-ICFO-21220 (Remand Search) 21

Files

pages

Close