A New York judge has ordered the Immigration Customs and Enforcement agency to produce withheld information on how localities may “opt-out” or limit participation in the Secure Communities — even if it may be embarrassing to the agency.
The decision was based on on-going FOIA litigation by the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Cardozo Law School Immigration Justice Clinic, who first sued the U.S. Immigration and Customs Enforcement Agency, the Department of Homeland Security, the Executive Office for Immigration Review, the FBI, and the Office of Legal Counsel back in April 2010.
Judge Shira A. Scheindlin of the Southern District of New York granted several of the group’s requests to remove redactions from documents hiding inconsistent public statements. “The purpose of FOIA is to shed light on the operation of government, not to shield it from embarrassment,” Scheindlin wrote.
Scheindlin’s opinion discussed the validity of FOIA exemptions claimed by the government as well as a closed review of 49 documents, which included a completely redacted memo from Acting Assistant Director of Secure Communities Marc Rapp, an email exchange among staff responding to a state’s inquiry regarding opt-out, and an email from a deputy press secretary regarding what the agency’s message to the public about opt-out should be.
In one instance, Scheindlin writes, “…I am troubled, however, by defendants’ somewhat haphazard redactions and assertions of exemptions. For instance, hundreds of withheld pages are simply slightly different versions of two memoranda – one dated October 2, 2010 and entitled ‘Secure Communities – Mandatory in 2013,’ and the other contained within an email dated October 1, 2010 and entitled ‘SC language: Predecisional Draft for Review and Comment.’”
Earlier this year, plaintiffs were in court seeking assistance from the court when documents provided to them were unusable. According to Scheindlin’s Feb. opinion, the records were “produced in an unsearchable PDF format,” “electronic records were stripped of all metadata,” and “paper and electronic records were indiscriminately merged together in one PDF file.”
ICE will need to produce new documents by August 1, 2011 and appear in court for a conference on August 11, 2011.
“The court refused to allow the government to withhold documents that merely discuss how to spin an agency policy for the public, especially when the agency’s messaging is purposefully misleading,” said Sunita Patel, an attorney with the Center for Constitutional Rights. “The release of the information improperly withheld from the public will only help public officials and community members in the on-going Secure Communities debate.”
Click here to the read the full opinion.