FOIA Project’s Brief Bank Adds Detailed Court Documents for 27 FOIA Lawsuits

TRAC has seen significant growth in its FOIA Brief Bank by building relationships with FOIA attorneys across the country and ensuring these attorneys have a trusted outlet for their work. Since June of 2021, TRAC’s summer legal interns have uploaded 984 documents to the FOIA Project’s Brief Bank, contributed by 19 litigators across 27 different cases.  These documents include substantive briefs, motions, and testimony related to FOIA cases that allow FOIA requesters and FOIA litigators to better understand the FOIA process and prepare for litigation when necessary. These documents are also valuable for journalists, researchers, and members of the public who are concerned about government transparency and accountability.

Immigration Agencies Face Legal Challenges When Attempting to Withhold Public Records

After reviewing the substance of each of the 27 cases, the FOIA Project identified 22 cases that focus specifically on public records related to immigration enforcement. Given ongoing debates about the policies and practices of America’s immigration enforcement agencies, there is considerable public interest in obtaining and understanding government records that provide insight into how federal immigration agencies function. The Brief Bank documents obtained by the FOIA Project point to the types of records that immigration agencies are attempting to withhold from the public. They also provide valuable insight into the uphill battle that FOIA requesters face when they seek those records.

Due to the TRAC interns’ primary focus on soliciting documents for immigration cases, a large number of FOIA cases added to the Brief Bank are immigration-related. The prioritization of immigration cases emerged, in part, from the fact that immigration-related FOIA requests dominate the number of FOIA requests nationally. For instance, in FY 2020, the Department of Homeland Security (DHS), which oversees immigration enforcement, received a total of 397,671 FOIA requests, more than all other federal agencies combined (393,017) according to data obtained from FOIA.gov.

The 22 immigration-related FOIA lawsuits added to the Brief Bank include a total of 11 distinct federal agencies. Each lawsuit may contain more than one agency named as a defendant, so the total number of instances of named defendants exceeds the total number of cases. The most frequently named defendant, in 11 out of 22 cases, was Immigration and Customs Enforcement (ICE), the agency primarily responsible for interior immigration enforcement, immigrant detention, and the deportation process. The Department of Homeland Security (DHS) was named in 9 lawsuits. DHS is the cabinet-level department that oversees the various immigration control agencies. Customs and Border Patrol (CBP), the agency responsible for border enforcement, was named in 8 lawsuits.

Figure 1 and Table 1 below show each agency named in FOIA lawsuits in this batch of Brief Bank documents and the number of times each agency was named in a lawsuit.

Top Immigration Brief Bank Contributors

Of the documents contributed this summer, about 800 are from cases regarding matters of immigration. This subset, which constitutes over 80% of the total document cache, was contributed by just 15 litigators. The single largest contributor to the Brief Bank was also the first: Claudia Valenzuela of Immigrant Legal Defense, who shared 423 documents from three different cases. American Immigration Lawyers Association v. United States Department of Homeland Security et al, which also happens to be the oldest immigration case, includes the most documents of the three––and of any single case this summer: 207 joint status reports, motions, orders, and exhibits, presenting the most complete picture of FOIA litigation to date. 

The FOIA Project extends its appreciation to the many top contributors of immigration case documents. Carrie DeCell of the Knight First Amendment Institute at Columbia University sent one of the largest batch of FOIA documents—a total of 140—related to the Knight Institute’s lawsuit against multiple immigration agencies. Other significant contributors include Brett Max Kaufman of the ACLU who sent 147 documents, Christopher C. Morley of Davis Wright Tremaine LLP who sent 51, and Dan McFadden of the ACLU of Massachusetts who sent nearly 50 documents.

The American Civil Liberties Union has both the longest- and the shortest-running cases contributed this summer: S.D.N.Y. 1:2015cv01954, filed in March 2015 and still open as of publication—77 months in August 2021—and D. Mass. 1:2019cv10291, open and shut in just three months in 2019. An ACLU affiliate was the plaintiff in seven of the uploaded cases, representing a cache of 197 of the uploaded documents. Overall, 12 of the 28 total cases remain open.

List of Immigration FOIA Cases Now Updated in the Brief Bank

Table 2 provides a list of immigration-related FOIA lawsuits updated in the Brief Bank, including the start and end dates, case name, plaintiffs, agencies named in the suit, and a case number that links to the case in the FOIA Project’s Brief Bank where users can find case documents.

List of Additional FOIA Cases Now Updated in the Brief Bank

Several cases updated in the Brief Bank were not directly related to immigration. Table 3 provides a list of non-immigration-related FOIA lawsuits updated in the Brief Bank, including the start and end dates, case name, plaintiffs, agencies named in the suit, and a case number that links to the case in the FOIA Project’s Brief Bank where users can find contributed documents.

‘Thank you’ to All of the Generous Brief Bank Contributors

The FOIA Project and the summer intern team would like to extend our appreciation to generous members of the FOIA community who contributed documents to all 27 cases updated in the brief bank this summer. The list below includes their names and affiliations.

• Brett Max Kaufman, ACLU
• Dan McFadden, ACLU
• Patrick Christopher Toomey, ACLU
• Kyle A. Dandelet, Cleary Gottlieb Steen & Hamilton LLP
• Christopher C. Morley, Davis Wright Tremaine
• Eric M. Stahl, Davis Wright Tremaine
• Garen Meguerian, Garen Meguerian, Attorney at Law
• Claudia Valenzuela, Immigrant Legal Defense
• Carl Nicholas Wedoff, Jenner & Block LLP (NYC)
• Alex Abdo, Knight First Amendment Institute at Columbia University
• Carrie DeCell, Knight First Amendment Institute at Columbia University
• Christopher Benoit, Law Office of Lynn Coyle, PLLC
• Bradley Moss, Law Offices of Mark S. Zaid, P.C.
• Matthew D. Strugar, Law Office of Matthew Strugar
• Aaron Korthuis, Northwest Immigrant Rights Project
• Adam Alexander Marshall, Reporters Committee for Freedom of the Press
• Trina Ann Realmuto, National Immigration Litigation Alliance
• Devin T. Theriot-Orr, Open Sky Law PLLC
• George A. Zimmerman, Skadden Arps Slate Meagher & Flom LLP

What is the Brief Bank Initiative? 

Although the FOIA Project keeps diligent track of federal FOIA-related lawsuits by downloading docket sheets, complaints, and opinions from PACER and annotating and classifying each case on legal issues and other characteristics, the project does not download briefs due to the prohibitively high cost of doing so at $0.10 per page. Yet briefs are of inestimable value to FOIA requesters and litigators both in terms of preparing FOIA requests and lawsuits, but also enabling more systematic research on the veracity and consistency of government claims across various court cases. Therefore, we are now seeking organizations, FOIA requesters, and attorneys to contribute their briefs (including government supporting declarations) so that these can be added to our collection.

How does the Brief Bank Initiative Work?

Because TRAC has considerable experience with large-scale data management, we developed document and data management programs specific to the FOIA Project that not only allow us to upload user-contributed documents to the website, but also enables us to link each brief to its proper court case. This means that when users search FOIAProject.org, they will not only receive links to documents and opinions that we download automatically, but users also receive links to any contributed briefs and declarations, as well. Existing search tools automatically include in the response to queries links to not only documents and opinions, but also to any contributed briefs and declarations.

How can you get involved?

To contribute or inquire about the Brief Bank, email us at FOIABriefs@foiaproject.org. Learn more about the Brief Bank here.

This report was co-authored by TRAC’s summer legal interns, Lee Tremblay of Georgetown University Law Center (‘23) and Angelica Judge of Syracuse University College of Law (‘23), with the support of Sarah Cossman of American University Washington College of Law (‘24) who designed and created the graphics. The report was edited and validated by TRAC Faculty.