|Submitted||Aug. 21, 2018|
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To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
In March, 2018 Director McHenry announced to all Immigration Judges the implementation of new performance metrics for Immigration Judges. Those metrics go into effect on October 1, 2018. In an e-mail on March 30, 2018 Director McHenry also announced a "performance dashboard" that would be created for the agency to track each judge's performance in relation to the metrics. That Dashboard was anticipated to have gone online in April, 2018.
In anticipation of the new performance metrics going into effect, I am requesting the current dashboard for each of the immigration judges as of August 21, 2018. We would like to make future requests for these same data after the new performance metrics go into effect to determine whether and to what extent the new performance metrics have affected Immigration Judge decisions.
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.
An acknowledgement letter, stating the request is being processed.
The request has been rejected by the agency.
The screenshot of the current performance dashboards is not "pre-decisional" as that term is defined in FOIA litigation. Documents that are "pre-decisional" only include documents that would be exempt from disclosure in the civil litigation context because they relate to a future or pending decision by the agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987); see also Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (highlighting importance of protecting privileged information).
The dashboards have nothing to do with a decision the agency is preparing to make. As described when they were announced, the dashboards have already gone live so IJs can see how they are currently performing against the performance metrics that will go into effect in the future. The dashboards themselves have nothing to do with decisions the agency is planning to make. They're only tracking decisions the agency has already made (continuances granted, cases disposed of, etc.). The apply exemption b5 to these documents is to far outstretch the exemption.