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Sep 22 17

Speeding up the Processing of FOIA Requests at ICE: Send Blank CDs

by FOIA Project Staff

The FOIA operations at Immigration and Customs Enforcement are clearly troubled, as the following all too common scenario shows:

At long last, the envelope from ICE’s FOIA office arrives, to a request made months ago. Opening the envelope, the letter inside from ICE FOIA Officer Catrina M. Pavlik-Keenan states: “A search .. for records responsive to your request produced 1-Excel Spreadsheet.”

We slip the CD into the computer to examine the records we received. But there is nothing on the disk. While the CD has a label with the correct FOIA tracking number ICE assigned to the request, nothing has been recorded on the CD. It’s totally blank.

Has anyone else had this experience? Despite receiving FOIA responses from dozens of federal agencies, the blank CD problem seems to occur most often with responses TRAC receives from ICE. For example, this week on Wednesday we received an envelope from ICE. Instead of the records we had sought, there was only a blank CD accompanying the response letter. Three additional envelopes also arrived this week from ICE’s FOIA office. Each ostensibly contained the agency’s response to different long pending requests – at least that is what the FOIA Officer’s response letters stated was the case. But in each response letter the accompanying CD was blank.

That is certainly one way to speed up the closure of FOIA requests. Send blank CDs instead of the actual records requested.

This should not be surprising. After all, it is September. As ICE’s own records reveal, each year when September rolls around there is a sudden rush to close out long stalled requests that have been sitting unanswered—timed to beat the deadline for filing the agency’s annual report.

Apparently, one way to close out cases in a hurry is to send requesters blank CD’s instead of the requested records.

Sep 21 17

WITTES v. U.S. FEDERAL BUREAU OF INVESTIGATION and 16 other new FOIA lawsuits

by Harry Hammitt

We have added 99 documents from 16 FOIA cases filed between September 10, 2017 and September 16, 2017. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. WITTES v. U.S. FEDERAL BUREAU OF INVESTIGATION (filed Sep 13, 2017)
    Benjamin Wittes, editor of the online publication Lawfare, submitted a FOIA request to the FBI for records concerning communications from acting FBI Director Andrew McCabe and other senior officials to the FBI workforce concerning the firing of James Comey. Wittes also requested a fee waiver. Wittes submitted a second FOIA request for records concerning materials sent by senior officials to various component offices of the FBI concerning the firing of Comey read more…
Sep 21 17

FOIA Activity: 7 New Procedural or Substantive Decisions

by FOIA Project Staff

We have added 7 decisions of a procedural or substantive nature filed between September 10, 2017 and September 16, 2017. These are associated with 7 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. ARW 1:2016cv01050Carter v. USDA et al
    • September 13, 2017: ORDER granting [24] Amended Motion to Dismiss; case dismissed as moot. Signed by Honorable Susan O. Hickey on September 13, 2017. (cnn)
  2. read more…

Sep 15 17

THE DAILY CALLER NEWS FOUNDATION v. U.S. DEPARTMENT OF JUSTICE and 10 other new FOIA lawsuits

by Harry Hammitt

We have added 38 documents from 8 FOIA cases filed between September 3, 2017 and September 9, 2017. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. THE DAILY CALLER NEWS FOUNDATION v. U.S. DEPARTMENT OF JUSTICE (filed Sep 7, 2017)
    The Daily Caller Foundation submitted a FOIA request to the FBI for records concerning memos by former FBI Director James Comey memorializing his discussions with President Trump. The FBI denied the request, citing Exemption 7(A) (interference with ongoing investigation or proceeding). The Daily Caller filed an administrative appeal with the Office of Information Policy, but after hearing nothing further from OIP, the Daily Caller Foundation filed suit read more…
Sep 15 17

FOIA Activity: 15 New Procedural or Substantive Decisions

by FOIA Project Staff

We have added 15 decisions of a procedural or substantive nature filed between September 3, 2017 and September 9, 2017. These are associated with 10 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAC 5:2017cv00185Oronde London v. City of Redlands
    • September 5, 2017: FINAL REPORT AND RECOMMENDATION issued by Magistrate Judge Kenly Kiya Kato. Re: Complaint – (Discovery), [1] , NOTICE OF MOTION AND MOTION to Dismiss Case [43] (dts)
    • September 7, 2017: ORDER ACCEPTING FINAL FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge John F. Walter for Report and Recommendation (Final) 55. The Court accepts the findings and recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED that Judgment be entered dismissing this action with prejudice and without leave to amend. (iva)
    • September 7, 2017: JUDGMENT by Judge John F. Walter, related to: ORDER ACCEPTING FINAL FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, [56] Pursuant to the Order Accepting Final Findings and Recommendation of United States Magistrate Judge, IT IS HEREBY ADJUDGED that this action is dismissed with prejudice. (MD JS-6, Case Terminated). (iva)
  2. read more…

Sep 7 17

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

by Harry Hammitt

We have added 62 documents from 14 FOIA cases filed between August 27, 2017 and September 2, 2017. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (filed Aug 31, 2017)
    Public Employees for Environmental Responsibility submitted a FOIA request to the EPA for records concerning EPA Administrator Scott Pruitt’s announcement that he would create a task force to recommend changes in the administration of the Superfund program. PEER also requested a fee waiver. The agency acknowledged receipt of the request and granted PEER a fee waiver read more…
Sep 7 17

FOIA Activity: 12 New Procedural or Substantive Decisions

by FOIA Project Staff

We have added 12 decisions of a procedural or substantive nature filed between August 27, 2017 and September 2, 2017. These are associated with 12 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. ARE 4:2016cv00622Steinbuch v. University of Arkansas et al
    • August 29, 2017: ORDER granting [12] Mr. Steinbuch's motion to remand, which the Court construes as Mr. Steinbuch's motion to dismiss voluntarily his federal First Amendment claim; denying as moot [3] all other pending motions in this matter; and directing the Clerk of Court to remand this action to the Circuit Court of Pulaski County. Signed by Judge Kristine G. Baker on 8/29/2017. (mef)
  2. read more…

Sep 5 17

Crisis Management Now Routine at ICE FOIA Office

by FOIA Project Staff

A classic picture of crisis management emerges from more than four years of case-by-case records from the FOIA office of Immigration and Customs Enforcement, updated through June 2017. When monthly case closings are plotted, case processing shows anything but an even flow. See Figure 1.

requests_changeFigure 1. Number of ICE FOIA Requests Closed, by Month

Revealed instead is a mad scramble to close out backlogged FOIA requests each September – no doubt timed to beat the deadline for filing the agency’s annual report. In 2016, for example, the monthly FOIA closures numbered around 4,500 each month. Then in September they nearly tripled, jumping to 13,205, before returning in October back down to 3,840.

This was not a one-time freak occurrence. As shown in Figure 1, similar jumps in FOIA closings – indeed some even larger — can be observed in September 2014, and September 2015. See Figure 1.

When this picture is paired with a second showing how long cases have waited before they were closed, an equally disturbing pattern is seen. The sets of cases closed each September appear very different in composition from those typically processed during the rest of the fiscal year. During the first eleven months of FY 2016, for example, FOIA cases closed took on average 10-20 calendar days from receipt to closure. Then in September, the average closure time in that single month jumped to 313 calendar days! See Figure 2.

requests_changeFigure 2. Average Calendar Days ICE FOIA Requests Took to Close, by Month

Similar jumps in processing time can be observed in September during each of the two previous fiscal years.

Figures 1 and 2 in combination point to severe management problems plaguing ICE’s FOIA office. FOIA managers do not appear to monitor the processing of FOIA requests on a regular basis to ensure requests move smoothly through their work queues. Instead, ICE managers allow many requests to stall somewhere in the process until the end of the fiscal year approaches. Only then is there any apparent systematic attempt to ensure that older cases get attention and a frantic rush to close out stalled cases occurs.

While some effort to close out cases in September may be natural, the lack of attention given to ensuring a smooth flow of cases throughout the rest of the year is not only undesirable but counter-productive.

Answers to some requests are needlessly delayed in violation of timeliness requirements in the law. The quality of some responses that requesters receive surely suffer in such an intense push to close cases. And the pressure on FOIA staff to cut corners to speed case closures can hardly make the office a desirable place to work. For full details, see Agency FOIA Backlogs and Processing Times tool.

Sep 1 17

Update to FOIA Backlogs and Processing Times data tool

by FOIA Project Staff

We have updated the Agency FOIA Backlogs and Processing Times data tool.

Data has been updated for these agencies:

Aug 31 17

Lambda Legal Defense and Education Fund, Inc. v. United States Department of Education et al

by Harry Hammitt

We have added 83 documents from 11 FOIA cases filed between August 20, 2017 and August 26, 2017. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. Lambda Legal Defense and Education Fund, Inc. v. United States Department of Education et al (filed Aug 22, 2017)
    The Lambda Legal Defense and Education Fund submitted FOIA requests to the Department of Education and the Department of Justice for records concerning the rescission of two guidance documents pertaining to schools’ Title IX obligations with respect to transgender students. The Department of Education acknowledged receipt of the request and told Lambda that it would take more time to respond read more…