Appeals Court Tells ICE Its Counterintuitive Tracking System Doesn’t Justify Jerking Around FOIA Requesters
U.S. Immigration and Custom Enforcement (ICE), like nearly every government agency, doesn't care much for FOIA requests or requesters. It generally takes a lawsuit to force the agency to comply with its FOIA obligations. And its day-to-day handling of FOIA requests is so uninspired, it couldn't even come up with a reason to deny Mike Masnick's fee waiver request.
Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because .
It will have to be (slightly) more responsive now. The Second Circuit Appeals Court has reversed a pretty terrible decision by the lower court in an FOIA lawsuit brought by the ACLU. The Appeals Court decision [PDF] opens up with the court's attempt to explain ICE's needlessly-convoluted incident tracking system.
ICE's Enforcement Integrated Database (EID") is the agency's common database repository for all records created, updated, and accessed by a number of software applications. EID allows ICE officials, along with other law-enforcement components of the Department of Homeland Security, to manage cases from the time of an alien's arrest, in-processing, or placement into removal proceedings, through the final case disposition." EID, however, does not store data on a person-centric basis; rather, it stores data in an event-centric manner. Thus, when a particular enforcement event occurs, ICE officers enter it into EID where it is stored with data recording similar events rather than with data pertaining to the same alien.
That's a weird way of handling things, especially if ICE is interested in tracking people, rather than just incidents. And it is interested in tracking people. It just does the whole thing backwards. Immigration lawyers and advocates also need this information to help their clients - something that's often only available via FOIA request. That possibly explains why ICE catalogs data this way. It doesn't stop ICE from tracking immigrants across the database, as the court notes:
Nevertheless, ICE software does permit the agency to retrieve EID data on a person-centric basis. Specifically, with an appropriate identifier-here the alien's A-Number-ICE can search on an ad hoc basis for all events pertaining to that particular alien.
It does, however, make it extremely difficult for outsiders to do the same thing, much less gather all information relevant to their clients. The ACLU sought records from several incident categories and asked ICE to, basically, make the records sortable by person, rather than by incident type. ICE eventually handed over the records, but redacted the A-Numbers, making the spreadsheets completely useless to the ACLU.
ICE did this despite the ACLU asking that ICE replace A-Numbers with unique ID numbers, knowing that ICE considered A-Numbers exempt from FOIA requests. ICE refused to perform this simple task, instead replacing the A-Numbers with FOIA exemption codes.
ICE responded to the ACLU's lawsuit by claiming (1) it wasn't obligated to do this, and (2) it couldn't do this.
In its motion for summary judgment, ICE conceded that an A-Number is [t]he only piece of information stored in a row of IIDS data that connects an entry to an individual uniquely." Notwithstanding, ICE submitted that, because A-Numbers are exempt as PII, and because the substitution of such numbers with Unique IDs would require the creation of new records-an obligation not imposed by FOIA-ICE's production to ACLU without Unique IDs had satisfied its FOIA obligations. Further, ICE professed not to have a computer program by which it could create person-centric reports of electronic data, i.e., with each row corresponding to an individual and showing that individual's removals, detentions, etc."
LOL. ICE is basically claiming it doesn't own a spreadsheet program, despite handing the ACLU several spreadsheets in response to its FOIA request.
The Appeals Court says this is clearly ridiculous. Any identifying number could be used to allow tracking of immigrants across several incident categories. Since ICE claims its A-Numbers are personally identifiable info, it could swap that out with any other consistent identifier that would be non-exempt. Since this doesn't change anything about the requested records, it's not the creation of new records.
Providing deliberately useless information to FOIA requesters won't fly either.
[W]e conclude that ICE may not rely on A-Numbers' exemption from FOIA disclosure to deny the public equal access to non-exempt records. Rather, ICE must find an alternative means to provide ACLU with responsive person-centric access to non-exempt records.
Indeed, to hold otherwise could have the perverse effect of encouraging agencies to make exempt records the singular means for gaining access to non-exempt records responsive to a particular query and, thereby, effectively to conceal those records from the public, at least in the way responsive to the query. Such an outcome is contrary to the clear legislative intent" underlying FOIA...
The solution is one the ACLU proposed. ICE can't continue to be this obtuse.
A physical analogy may be useful. If an agency were to maintain non-exempt, person-centric records in a vault, the lock of which could be opened only with a combination of exempt numbers, the agency could not decline to produce documents from the vault by invoking the exemption afforded to the lock combination. Rather, FOIA would oblige the agency to open the vault itself and produce the responsive records. Or, the agency would have to change the combination to non-exempt numbers and thereby afford public access. So here, ICE must itself use A-Numbers to produce a spreadsheet of person-centric data for ACLU, see infra at 38-39, or, as ACLU here requests, ICE must change the lock" combination numbers so that ACLU can itself access records in a person-centric manner.
ICE loses. It will have to be actually responsive to ACLU's request, rather than just handing it a bunch of data while withholding the one thing that might make that data useful.