Court Criticizes ICE’s Efforts to Avoid Disclosure as “Offensive” to Freedom of Information Act
October 25, 2011, New York—Last night, Judge Shira Scheindlin ordered the Immigration and Customs Enforcement (ICE) agency to publicly disclose by November 1 a previously withheld internal memorandum that advocates believe will shed light on the agency’s legal justification for turning Secure Communities into a mandatory immigration enforcement program.
The decision follows motions for summary judgment filed by all parties in NDLON v. ICE
about the memorandum. The government claimed the memorandum was exempt from disclosure under the attorney-client and deliberative process privileges. Plaintiffs the National Day Laborers Organizing Network, Center for Constitutional Rights, and Cardozo School of Law Kathryn O. Greenberg Immigration Justice Clinic argued the memo was improperly kept secret from the public in the midst of important policy decisions related to Secure Communities. Indeed, this summer, opposition to Secure Communities reached new levels with the Governors of Illinois, Massachusetts, and New York formally rejecting the program. In response, ICE announced that all of its Memorandum of Agreements with States were dissolved and that the program would be imposed unilaterally. Despite serious questions from States, local jurisdictions, and advocates about ICE’s legal authority to make the program mandatory, the agency continued to withhold information about its legal reasoning and sought to keep the legal authority memorandum secret.
The court ruled in favor of plaintiffs and determined the memorandum had been drafted to justify an already existing policy to make Secure Communities mandatory; that the government failed to prove it had kept the memo confidential; and that the agency had adopted the memorandum’s conclusions and analysis as its internal working law.
The National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigrant Justice Clinic released the following statement in response to the court’s decision:
Our organizations, along with a chorus of advocates and elected officials across the country, have been seeking to uncover the truth behind ICE’s decision to compel states and localities to participate in its dangerous Secure Communities program. The memorandum ordered disclosed is the only document to date that comprehensively describes the legal authority claimed by ICE in support of its position mandating state and local participation in the controversial program – a deportation dragnet that has raised concerns about racial profiling, due process, the ensnarement of U.S. citizens, community policing, privacy, and other issues.
The judge’s order shines a light on a program that has been plagued with secrecy and lies from its start. We agree with the court’s conclusion that, “an agency’s view ‘that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.’” We believe it’s also offensive to our democracy.
With this decision, the court has rejected efforts by ICE to “radically expand the government’s ability to resist FOIA requests” and has affirmed that FOIA exists “to promote honest and open government and to assure the existence of an informed citizenry in order to hold the governors accountable to the governed.” We urge the Obama administration to hold federal agencies accountable for their deception and mismanagement, to recognize the complete failure of the Secure Communities program, and to terminate it immediately. It’s time to restore trust and communities.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.