July 13, 2012, New York – Today, in an important victory for open government, Judge Shira A. Scheindlin, of the Southern District of New York, ruled that the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have failed to adequately search for and disclose information pursuant to the Freedom of Information Act (FOIA). The ruling comes in NDLON v. ICE, a FOIA lawsuit brought by the National Day Laborer Organizing Network (NDLON), the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, with representation by Mayer Brown LLP. The suit seeks government records relating to the controversial Secure Communities (SCOMM) program.
Said Center for Constitutional Rights attorney Ghita Schwarz, “Today’s decision rightly holds the government to standards of transparency and accountability, an important step in stopping the harm this program is causing in our communities. Despite claims that SCOMM targets serious criminals, the fact is that SCOMM has done nothing but break families apart and undermine public safety by intimidating victims and witnesses of real crimes from reporting them.”
In a strongly worded opinion, Judge Scheindlin sided largely with plaintiffs, stating that “[t]ransparency is indeed expensive, but it pales in comparison to the cost of a democracy of operating behind a veil of secrecy.” Judge Scheindlin flatly rejected the defendant agencies’ claim that they should be “trusted to run effective searches” for records responsive to plaintiffs’ FOIA request “without providing a detailed description of those searches.” Particularly harsh in its conclusions about the FBI’s failure to search for documents, Judge Scheindlin characterized as “absurd” their position that ordering an office to conduct a search and receiving no response satisfied government obligations under FOIA. Pointing out that FOIA requires the government to “use twenty-first century technologies to effectuate congressional intent,” the decision broke new ground by ordering the government to “work cooperatively” with plaintiffs to “design and execute” new searches.
Said co-counsel Anthony Diana from Mayer Brown LLP, “Particularly important is the court’s recognition that the government should work with the FOIA requester to help alleviate some burdens associated with the search of a large volume of electronic data. In an era when government policies are crafted and implemented almost entirely through electronic documents, we hope that applying lessons learned in the civil e-discovery context in FOIA cases will promote transparency and accountability in government across the board.”
Said Jessica Karp of NDLON, “It is fitting that today’s decision comes at the end of a national week of action to ‘Restore Trust’
broken by the Secure Communities deportation program. Transparency and accountability are essential if we are to repair the damage done by this program that is spreading Arizona-style policies around the country. We are especially hopeful that the new searches will bring much-needed transparency to the role of the FBI in forcing this dangerous program on unwilling states and localities.”
Said Sonia Lin of the Immigration Justice Clinic of the Cardozo School of Law, “Today’s decision underscores the importance of transparency about controversial government policies such as SComm. The court rightly observed that this FOIA litigation has ‘influenced much of the public debate over Secure Communities’ and that through this litigation, FOIA has ‘therefore served its purpose of engendering a more informed public and a more accountable government.’ Indeed, this week, Chicago announced a proposal to reject SCOMM and former Manhattan District Attorney Robert Morgenthau publicly called for state and local ability to opt out of the program, which he described as ‘the worst kind of public policy.’”
SCOMM is an ICE deportation program that checks the immigration status of anyone arrested by local and state police, regardless of the charges and whether those charges are later dismissed.