TVPA Contractor Notifications to OIG Pursuant to 48 CFR 52.222-50(d)

Andrew Free filed this request with the Department of Homeland Security Office of Inspector General of the United States of America.
Tracking #

2020-IGFO-00152

Due July 10, 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:

Overview
This seeks DHS-OIG agency records regarding Contractor Notifications to the Department of Homeland Security's Office of Inspector General that are required by 48 C.F.R. 52.222-50(d)(1) and (2), as incorporated by contract, regarding allegations of forced labor at civil immigration detention facilities operated by contractors of U.S. Immigration and Customs Enforcement (ICE). These Contractor Notifications are required by federal law when the contractor receives credible information regarding violations of the forced labor provisions of the TVPA, 18 U.S.C. 1589, including those arising from alleged forced labor. See 48 C.F.R. 52.222-50(b)(3). The Contractor Notification requirement is incorporated into every federal detention contract at issue in this request as a matter of law.

Since the Contractor Notification regulations took effect, ICE's two largest federal government detention contractors - CoreCivic, Inc. and The GEO Group, Inc. - have been found by federal courts to have plausibly engaged in forced labor violations at nearly all of their facilities nationwide. See Owino v. CoreCivic, Inc., No. 17-cv-1112, 2020 U.S. Dist. LEXIS 58268 (S.D. Cal. 2020) (certifying a nationwide forced labor class for CoreCivic's civil immigration detention facilities), Novoa v. The GEO Group, Inc., No. 5:17-cv-2514-JGB-SHK, Dkt. No. 223 (C.D. Cal. 2019) (certifying a nationwide forced labor class for most of GEO's civil immigration detention facilities) available at https://www.clearinghouse.net/chDocs/public/IM-CA-0142-0006.pdf. In addition, federal judges in five separate U.S. district courts have denied efforts by these contractors to dismiss TVPA forced labor claims raised by current or former ICE detainees. See Owino v. CoreCivic, Inc., 2018 WL 2193644 (S.D. Cal. May 14, 2018); Gonzalez v. CoreCivic, Inc., No. 1:18-cv-169 (W.D. Tex. Feb. 22, 2018), ECF No. 29 (Order Denying Motion to Dismiss), at 4-5; Novoa v. GEO Grp., Inc., EDCV 17-2514 (SHKx), 2018 WL 3343494 (C.D. Cal. June 21, 2018) (same); Menocal v. Geo Grp., Inc., 113 F. Supp. 3d 1125, 1131-33 (D. Colo. 2015) (same).

Together, CoreCivic and GEO house up to 60% of the civilly detained immigrants held by ICE on any given day, and receive the majority of federal immigration detention contract funds appropriated by Congress. Their market share in these contracts, and ICE's Congressionally-appropriate total number of detention beds more broadly, has grown approximately 50% in the past 3 1/2 years. Yet neither ICE's Contracting Officers nor DHS-OIG appear to have taken any of the actions required by law. See 48 C.F.R. 52.222-50(g).

In 2019, the Solicitor General of the United States informed the U.S. Court of Appeals for the Eleventh Circuit in Barrientos v. CoreCivic, Inc., No. 18-15081. 951 F.3d 1269 (11th Cir. 2020), that ICE and the DOJ consider the forced labor provisions to apply to private detention contractors' work programs, and opined that where those contractors violate ICE's contractually binding Performance-Based National Detention StandardsPreviously (PBNDS). The Solicitor General's Amicus Brief in support of neither party specifically referenced the Executive Order which gave rise to the insertion of the Contractor Notification requirement into the Federal Acquisition Regulations for all domestic federal contracts. See Strengthening Protections Against Trafficking in Persons in Federal Contracts, 77 Fed. Reg. 600029, 60030 ("Sec. 2. Anti-Trafficking Provisions. (a) Within 180 days of the date of this order, the Federal Acquisition Regulatory (FAR) Council, in consultation with the Secretary of State, the Attorney General, the Secretary of Labor, the Secretary of Homeland Security, the Administrator for the United States Agency for International Development, and the heads of such other executive departments and agencies (agencies) as the FAR Council determines to be appropriate, shall take steps necessary to amend the Federal Acquisition Regulation to:
(1) strengthen the efficacy of the Government’s zero-tolerance policy on trafficking in persons by Federal contractors and subcontractors in solicitations, contracts, and subcontracts for supplies or services (including construction and commercial items), by: . . . (C) requiring contracting officers to notify, in accordance with agency procedures, the agency’s Inspector General, the agency official responsible for initiating suspension or debarment actions, and law enforcement, if appropriate, if they become aware of any activities that would justify termination under section 106(g) of the TVPA, 22 U.S.C. 7104(g), or are inconsistent with the requirements of this order or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor, and further requiring that the agency official responsible for initiating suspension and debarment actions consider whether suspension or debarment is necessary in order to protect the Government’s interest[.])" I

Previously, the Office of Inspector General faulted ICE for failing to adequately oversee some DHS contracts: https://www.oig.dhs.gov/sites/default/files/assets/2019-07/OIG-19-50-Jul19.pdf, and for failing to use available contracting tools to achieve compliance with the PBNDS: https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf.

In 2017, DHS-OIG specifically notified ICE that the policies of requiring immigrant detainees to clean common living areas for no remuneration, as opposed to their immediate living areas, violates the PBNDS: https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-43-MA-030617.pdf at p. 6 (" Additionally, requiring detainees to clean common areas used by all detainees is in violation of ICE standards, as detainees are only required to clean their immediate living area."). ICE concurred with all three OIG recommendations in that report, and committed to resolving them.

Description of Records Requested
1. All Contractor Notifications to DHS-OIG from any ICE contractor, including, but not limited to, The GEO Group, Inc. and CoreCivic, Inc., regarding credible information that its agents have engaged in forced labor violations.
2. All DHS-OIG agency records received pursuant to 48 C.F.R. 52-222-50(g).
3. All DHS-OIG agency records pertaining to any actions taken upon receiving such Contractor Notifications.

Pursuant to 6 C.F.R. 5.4(b), we request records that should have been received by DHS-OIG from GEO at the time the Menocal v. The GEO Group, Inc. litigation was filed in the District of Colorado on October 22, 2014, or, at the very least after the District of Colorado ruled the allegations in Menocal of forced labor violations were plausible in 2015. The same dates of receipt corresponding to the filing and district court decision dates of the Owino, Gonzalez, and Novoa class actions should be used to formulate the search. It is believed that OIG _MAY_ have been forwarded these notifications by the U.S. Immigration and Customs Enforcement, Office of Acquisition Management (OAQ) Contracting Officer for each relevant contract. However, because the binding regulation requires direct notification to DHS-OIG, we believe there should be records received by OIG directly from the contractors themselves.

Expedited Processing Request
Pursuant to 6 C.F.R. 5.5(e)(1)(iv), I request expedited processing of this request. The issue of DHS contractors' alleged use of forced labor in ICE's civil immigration detention facilities has been the subject of widespread and exceptional media interest, and there are significant questions regarding ICE and OIG's responses to those allegations which affect public confidence.

A representative sampling of the media stories we rely upon for the proposition that these allegations have been the subject of widespread and exceptional media interest follows:
1. https://www.washingtonpost.com/news/post-nation/wp/2017/03/05/thousands-of-ice-detainees-claim-they-were-forced-into-labor-a-violation-of-anti-slavery-laws/
2. https://www.nytimes.com/2019/01/29/opinion/forced-labor-immigrants.html
3. https://www.westword.com/news/geo-lawsuit-alleging-forced-labor-of-immigrant-detainees-moves-forward-6886851
4. https://www.theguardian.com/us-news/2018/nov/25/private-prison-companies-served-with-lawsuits-over-usng-detainee-labor
5. https://www.miaminewtimes.com/news/emails-in-lawsuit-suggest-geo-group-forces-ice-detainees-to-work-11310005
6. https://www.npr.org/sections/thetwo-way/2018/02/09/584722399/appeals-court-broadens-immigrant-detainee-case-alleging-forced-labor
7. https://www.latimes.com/nation/la-na-immigrant-workers-20170305-story.html
8. https://www.wsj.com/articles/detention-operators-face-suits-over-1-a-day-work-programs-for-migrants-1532170801
9. https://ktla.com/news/nationworld/lawsuit-accuses-private-prison-contractor-of-forced-labor-in-immigrant-detention/
10. https://www.law.com/dailyreportonline/2020/03/02/11th-circuit-keeps-alive-claims-of-forced-labor-at-private-south-georgia-detention-center/
11. https://www.law.com/dailyreportonline/2020/01/30/lawyers-trade-appellate-arguments-over-forced-labor-at-immigrant-detention-site/
12. https://onlabor.org/the-use-of-forced-labor-in-private-immigration-detention-centers/
13. https://www.motherjones.com/crime-justice/2019/12/immigration-detainee-geo-forced-labor-lawsuit/
14. https://www.abajournal.com/news/article/ice_detainees_may_proceed_as_a_class_in_forced_labor_lawsuit_appeals_court
15. https://lawprofessors.typepad.com/immigration/2020/05/ending-forced-labor-in-ice-detention-centers-a-new-approach-georgetown-immigration-law-journal-for.html
16. http://www.courthousenews.com/wp-content/uploads/2020/02/laborimmigrationdetention.pdf
17. http://inthesetimes.com/features/ice_immigrant_detention_centers_forced_prison_labor_investigation.html
18. https://news.bloomberglaw.com/us-law-week/immigrant-detention-contractors-can-be-liable-for-forced-labor
19. https://www.sandiegouniontribune.com/news/immigration/sd-me-detention-lawsuit-20180516-story.html
20. https://www.usccr.gov/press/2018/01-02.pdf
21. https://www.axios.com/private-prisons-immigrant-detention-8e5b3317-8ecf-476c-b915-25330852e66f.html
22. https://www.nytimes.com/2014/05/25/us/using-jailed-migrants-as-a-pool-of-cheap-labor.html
22. https://www.reuters.com/article/us-usa-immigration-detention/11-toothpaste-immigrants-pay-big-for-basics-at-private-ice-lock-ups-idUSKCN1PC0DJ
23. https://www.thedailybeast.com/republicans-say-forced-labor-is-good-for-detained-immigrants-in-letter-defending-private-prison
24. https://www.cnn.com/2018/08/13/us/senators-letter-dhs-ice-detention-work-program-invs/index.html
25. https://www.cnn.com/2018/07/11/us/northwest-immigrant-detention-center-geo-group-invs/index.html

In addition to this representative sampling, the exceptional media interest in these claims has prompted the following action at the Congressional level:

1. Letter from lawmakers to three Executive Branch agencies (in body of story: https://www.thedailybeast.com/republicans-say-forced-labor-is-good-for-detained-immigrants-in-letter-defending-private-prison)
2. Letter from Sen. Warren: https://www.warren.senate.gov/oversight/letters/senator-warren-investigates-allegations-that-private-prison-contractors-withhold-basic-necessities-use-threat-of-solitary-confinement-to-coerce-detainees-into-voluntary-work-programs
3.Letter from 5 U.S. Senators: https://www.documentcloud.org/documents/4755454-8-13-18-Letter-to-Nielsen-Re-Conditions-and.html
4.Letter from Rep. Pressley and Sen. Warren https://pressley.house.gov/media/press-releases/rep-pressley-senator-warren-colleagues-investigate-revolving-door-between

With respect to the Public Confidence prong of DHS's expedited processing regulations, in addition to the sources provided above, your office should consider the following information in making its expedited processing determination:
1. https://www.thedailybeast.com/private-prison-executive-at-geo-group-pursues-federal-funds-spends-at-trump-hotel
2. https://www.thedailybeast.com/private-prison-bosses-beg-taxpayers-to-pay-human-trafficking-lawsuit-bills
3. https://www.thedailybeast.com/ex-ice-official-paid-to-defend-dollar1-a-day-wages-for-immigrants
4. https://www.thedailybeast.com/did-private-prison-contractor-illegally-boost-trump
5. https://www.newsweek.com/geo-group-private-prisons-immigration-detention-trump-596505

If, as it appears from DHS-OIG's actions over the past several years, no Contractor Notifications have been received by the Department, in direct contravention of the Federal Acquisition Regulations and these private detention contracts, which amount to billions of dollars of federal tax dollars committed over a period as long as 15 years to contractors who have manifestly failed to comply with their contracts and the certification provisions of the FAR and Homeland Security Acquisition Regulations relating to contractors' obligations upon receiving credible allegations of forced labor, this fact would significantly undermine the public confidence in the agency's ability to oversee these federal funds and the contractors who profit from receiving them.

I therefore respectfully request Expedited Processing of this request, including a determination within 10 working days as to whether DHS-OIG will grant it.

If you require any further information, please do not hesitate to contact me.

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: Department of Homeland Security Office of Inspector General

Dear Mr. Free:

Thank you for your interest in the U.S. Department of Homeland Security (DHS) Office of Inspector General (OIG). Attached please find DHS OIG's acknowledgement of your Freedom of Information Act request, referenced as 2020-IGFO-00152.

Sincerely,

FOIA/DHS-OIG

From: Andrew Free

Good afternoon:

I am in receipt of your letter dated July 6, 2020. I have the following information to supplement our request for expedited processing. Based on this information, I ask that you reconsider my client's expedited processing request and make a de novo determination on it within ten business days. I have also appealed today's determination administratively, which would become moot if you were to grant based on this request. See

An urgent need to inform the public exists because Congress is currently debating the FY21 Appropriations Bill, which will determine levels of future funding for contracts and contractors, as well as ICE and OIG, for civil immigration detention.

A record from OIG confirming that the contractors, ICE, and OIG have violated the FAR and HSAR provisions cited is a material and directly relevant matter of consideration for House appropriators, because the ultimate penalty for violating these provisions can include voiding the contracts and permanently disbarring the contractors involved.

Congress and the public have a right to know, in a time that allows for prompt and effective action, whether OIG, ICE's Contracting Officer, and these contractors have violated the terms of the contracts on which their appropriated funds are based.

Separately, the confirmation that contractors have failed to fulfill their contractual obligations with respect to the cited FAR and HSAR provisions has a direct and immediate impact on the individuals currently in ICE custody who are currently being subjected to these alleged practices by ICE's two largest detention contractors.

In sum, waiting until after Congress makes funding decisions to release this information now, when it matters, will render this information far less useful, and violate the letter and purpose of the FOIA.

Many thanks,

R. Andrew Free

From: Andrew Free

Good morning, I hereby appeal the determination of DHS-OIG's FOIA office denying my clients' request for expedited processing. (See denial letter attached).

In OIG's denial, the agency states:
Although you presented a representative sampling of widespread and exceptional media interest in which there exist possible questions about the government’s integrity, which affect public confidence, you have not met the FOIA statute’s prong of demonstrating a compelling need. § 552(a)(6)(E)(i)(I). Under the FOIA, the term “compelling need” means, with respect to a request made by a person primarily engaged in disseminating information, an urgency to inform the public concerning actual or alleged Federal Government activity. § 552(a)(6)(E)(v)(II). The urgency element of your expedited request is not met because you have not stated an impact your receiving the records in an accelerated time will have. See Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005).

But that's not what the Freedom of Information Act or DHS's FOIA regulations actually say. The "compelling need" standard you cite (5 USC § 552(a)(6)(E)(v)(II) (defining the term 'compelling need') refers to Section 552(a)(6)(E)(i)(I). However, the very next part of the text reads "in other cases determined by the agency." 5 USC 552(a)(6)(E)(i)(II). How do we know what other cases fall within the agency's determination as qualifying for expedited process? Simply read the law:
(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—

The regulations DHS promulgated pursuant to 552(a)(6)(E)(i) were cited in my original request, including the specific basis for why this request meets expedited processing requirement. 6 C.F.R. § 5.5(e)(1)(iv). Nothing about "compelling need" in the regulations.

In sum, you have already admitted that the regulations you promulgated apply directly to this request by conceding "you presented a representative sampling of widespread and exceptional media interest in which there exist possible questions about the government's integrity, which affect public confidence[.]" That's it. That's the reg. That's all you require us to demonstrate.

Please remand this request within ten working days with instructions to expeditiously process this request. Or please confirm immediately if the agency stands by its blatantly unlawful reading of the Act, so that we can raise this issue with a federal judge.

Many thanks,

Andrew

  • 2020-IGFO-00152__Acknowledgement_Letter.pdf

  • TVPA20Contractor20Notifications20to20OIG20Pursuant20to204820CFR2052.222-50d20E280.pdf

From: Andrew Free

Good morning, I hereby appeal the determination of DHS-OIG's FOIA office denying my clients' request for expedited processing. (See denial letter attached).

In OIG's denial, the agency states:
Although you presented a representative sampling of widespread and exceptional media interest in which there exist possible questions about the government’s integrity, which affect public confidence, you have not met the FOIA statute’s prong of demonstrating a compelling need. § 552(a)(6)(E)(i)(I). Under the FOIA, the term “compelling need” means, with respect to a request made by a person primarily engaged in disseminating information, an urgency to inform the public concerning actual or alleged Federal Government activity. § 552(a)(6)(E)(v)(II). The urgency element of your expedited request is not met because you have not stated an impact your receiving the records in an accelerated time will have. See Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005).

But that's not what the Freedom of Information Act or DHS's FOIA regulations actually say. The "compelling need" standard you cite (5 USC § 552(a)(6)(E)(v)(II) (defining the term 'compelling need') refers to Section 552(a)(6)(E)(i)(I). However, the very next part of the text reads "in other cases determined by the agency." 5 USC 552(a)(6)(E)(i)(II). How do we know what other cases fall within the agency's determination as qualifying for expedited process? Simply read the law:
(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—

The regulations DHS promulgated pursuant to 552(a)(6)(E)(i) were cited in my original request, including the specific basis for why this request meets expedited processing requirement. 6 C.F.R. § 5.5(e)(1)(iv). Nothing about "compelling need" in the regulations.

In sum, you have already admitted that the regulations you promulgated apply directly to this request by conceding "you presented a representative sampling of widespread and exceptional media interest in which there exist possible questions about the government's integrity, which affect public confidence[.]" That's it. That's the reg. That's all you require us to demonstrate.

Please remand this request within ten working days with instructions to expeditiously process this request. Or please confirm immediately if the agency stands by its blatantly unlawful reading of the Act, so that we can raise this issue with a federal judge.

Many thanks,

Andrew

From: Department of Homeland Security Office of Inspector General

Mr. Free:

Thank you again for your interest in the Department of Homeland Security (DHS) Office of Inspector General (OIG). Your request is still being processed. Unfortunately, we cannot predict exactly when your request will be completed, as we currently have a large backlog of requests; however, we are currently using our best efforts to complete processing of this request. You will be provided a response as soon as your request is ready for release, and we appreciate your patience.

Thank you,
FOIA/DHS-OIG

From: Department of Homeland Security Office of Inspector General

Your FOIAonline user account for requests@muckrock.com has been deactivated due to inactivity.

From:

sent you a secure message (#) veronica.jones@oig.dhs.gov
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Dear Mr. Free,

Please find attached our final response to the above-referenced FOIA request.

Thank You,

OIG, ILD

From: Andrew Free

I hereby appeal OIG's response in its entirety, as well as it's referral of an additional 270+ pages to ICE. This request was received by OIG in 2020. The documents the agency has released in response have absolutely no relation to the specific notifications requested. Rather, they are OIG investigation records unrelated to the TVPA.

Please advise whether any federal contractor or ICE has made a notification responsive to the original request. If not, please provide a letter stating no such notification has been made. If so, please provide all records relating to any such notification.

In addition, the records OIG provided in response are demonstrably incomplete. Please supplement all case files with the referenced underlying materials, including video, audio, and other evidence referenced in OIG's ROIs. See Stevens v. DHS-OIG (N.D. Ill 2014) (Adijat Edwards FOIA litigation resulting in production of underlying OIG video after years of litigation).

From: Andrew Free

We have not received a response to our appeal, dated March 14, 2022. Please assign it an individualized tracking number. Put it in the queue as filed in March, and resolve this appeal as soon as practicable.

Many thanks,

Andrew Free
#DetentionKills Transparency Initiative
Al Otro Lado

From: Andrew Free

Good evening,

Simply writing to follow up on this appeal.

Thanks in advance for any response you’re able to provide.

AF

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