Mexico Exclusion List and DOS BOPA E-mails re Nora Phillips Exclusion (U.S. Department of State)

To Whom It May Concern:

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

On Friday, February 1, 2019 Nora Phillips, an American civil rights icon and vocal critic of the ongoing mistreatment of refugees, was apprehended by Mexican authorities while traveling to vacation in Mexico and told a flag had been placed on her passport. As a result, she was detained for a series of hours with her 7-year-old daughter and then deported to the United States. Nora Phillips is a vocal migrant-rights advocate who has previously sued the United States government for human rights abuses. Three others were similarly excluded under identical circumstances: attorney Erika Pinheiro and journalists Kitra Cahana Daniel Ochoa.

As reported on February 1, 2019 in the Los Angeles Times here (https://www.latimes.com/la-me-immigration-attorneys-detained-20190202-story.html), these efforts appear to be a coordinated attack on immigration attorneys who advocate for the rights of refugees and journalists who dare to cover the refugee crisis on the border between the United States and Mexico. According to the LA Times story, at least one of those individuals was told the flag was placed there by the United States, and given the circumstances it appears retaliatory.

To try to understand fully what is happening and, more importantly, report on the ongoing threat against journalist and migrant-rights advocates during what the President of the United States has described as a crisis on the border, I am requesting the following records:

1. The list provided by the United States which led to Nora, Erika, Kitra, and Daniel having their passports flagged.
2. The e-mail messages from any employee of the U.S. Department of State Bureau of Public affairs between the dates of January 15, 2019 and February 2, 2019 mentioning any of the following terms: (1) "Nora Phillips"
"Pinheiro"
"Cahana"
"Daniel Ochoa"
"Remain in Mexico"

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.

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 DHS’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.

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 DHS’s archiving tools would capture that email under Capstone. Accordingly, I insist that the Department of State and Department of Homeland Security 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 disclose any reasonably segregable non-exempt portions of the requested records. 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 Department of State and Department of Homeland Security are 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 to target U.S. citizens, leading to unlawful arrest and deportation, apparently in retaliation for protected free speech. 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).

Moreover, the request is entirely and fundamentally for non-commercial purposes. 6 C.F.R. § 5.11(k)(1)(ii).

I request a waiver of fees because 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.” 6 C.F.R. § 5.11(k)(1)(i); see also 6 C.F.R. § 5.11(k)(2)(i)-(iv).

There has been immediate outrage and media coverage of the deportation of Nora Phillips, including the LA Times story referenced above (https://www.latimes.com/la-me-immigration-attorneys-detained-20190202-story.html). This request seeks to uncover additional information about these arguably unconstitutional efforts by the United States federal government to retaliate against attorneys and journalists for protected speech.

I am also a member of the news media and have written and researched immigration and refugee issues, and I request that all search and production fees be waived due to my news media status. I intend to use the results of this request to further my reporting on these subjects in American and international media. .

Expedite Request:
Pursuant to 6 CFR § 5.5(e)(1) I am requesting the processing and production of records in response to this request be expedited because of the emergent nature of the issue at stake and the danger facing individuals who unknowingly have been placed on the list. As an immigration attorney who intends to travel internationally in the coming months, I need to know as soon as possible if I am on the list. Further, to the extent the federal government appears to be engaged in an ongoing violation of the first amendment rights of immigration attorneys and journalists, the request meets the standard outlined at 6 CFR § 5.5(e)(1), and anything you can do to expedite the request would be appreciated.

As outlined above, I am primarily engaged in disseminating information, and this matter is urgent. The loss of substantial due process rights cannot be overstated. Finally, as outlined above, this is a matter of "widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." For all such reasons, the Department of State and Department of Homeland Security should expedite this request and produce the requested records at once.

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,

Matthew Hoppock