The ACLU of Southern California (ACLU/SC) filed suit today against the Immigration and Customs Enforcement agency (ICE) in federal court to enforce its right to a waiver of fees associated with its request under the Freedom of Information Act (FOIA) for government records related to ICE’s worksite enforcement policies and practices. In a dramatic departure from well-established FOIA law and practice that grants non-profit organizations fee waivers for FOIA requests made in the public interest, ICE denied the ACLU/SC a fee waiver for its request.
The availability of the public interest fee waiver is the cornerstone of FOIA that ensures public access to government records and fosters government transparency. However, in the past several years, ICE and other federal agencies have denied fee waivers to nonprofit public interest groups, such as the ACLU/SC. ACLU offices around the country complain that federal agencies have similarly denied their fee waiver requests.
The FOIA mandates that the government waive search and duplication fees where the request “is likely to contribute significantly to public understanding of the operations or activities of the government,” and is “not primarily in the commercial interest of the requester.” The so-called “public interest” fee waiver has enabled non-profits, like the ACLU/SC, to obtain critical information about how our government functions and to expose government wrongdoing.
“ICE has delayed or prevented the release of important information about how the government operates by denying fee waivers to the ACLU/SC and other nonprofits,” said staff attorney Michael Kaufman. “This unfortunate trend is directly contrary to the Obama Administration’s stated commitment to FOIA, and threatens to undermine the FOIA’s promise of openness and transparency in government.”
The ACLU/SC’s FOIA request sought ICE’s policies and procedures for worksite immigration enforcement, and records pertaining to a worksite raid at Terra Universal, Inc., a factory in Southern California, in June 2010. The ACLU/SC sought the records to enable the public to better understand ICE’s new worksite enforcement policies and how they work in practice, and to determine whether the Terra worksite raid complied with those new policies and federal and state law.
In response to the request, ICE denied the ACLU/SC a fee waiver and assessed over $10,000 in search fees, and required payment of half up-front before it would begin processing the request. As a result, nearly a year after the ACLU/SC first submitted its request, ICE has still not released a single document, much less begun the process of producing responsive documents.
“ICE’s worksite enforcement practices have been subject to intense public scrutiny in recent years,” said staff attorney Jennie Pasquarella. “The public is entitled to know about ICE’s policies, and whether the agency acted lawfully during the Terra Worksite raid. This is precisely the type of request for which the FOIA fee waiver exists.”
The suit asks the court to order ICE to issue a fee waiver for ACLU/SC’s request.
The case is ACLU v. ICE. Pro bono attorneys Jason Russell and Stacy Horth-Neubert are co-counsel on the lawsuit.