VIA EMAIL & U.S. MAIL February 12, 2018
U.S. Department of Homeland Security Privacy Office
245 Murray Drive SW, Building 410 STOP-0655
Washington, D.C. 20528-0655
U.S. Immigration and Customs Enforcement
800 North Capitol Street, N.W.
5th Floor, Suite 585
Washington, D.C. 20536-5009
Los Angeles Field Office
U.S. Immigration and Customs Enforcement
300 North Los Angeles St. Room 7631
Los Angeles, CA, 90012
RE: Request under the Freedom of Information Act Fee Waiver Requested
Dear Sir or Madam:
This letter constitutes a request for records made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, on behalf of the ACLU of Southern California (hereinafter "Requestor").
Requestor seeks records concerning Immigration and Customs Enforcement ("ICE") agents' practice of misrepresenting or concealing their identity when conducting enforcement actions. In documented cases, ICE agents have mispresented themselves as local law enforcement agency officials, claimed that they were "police" investigating non-immigration related crimes, worn misleading uniforms, and engaged in other deceptive conduct to conceal their identity. Through the use of these tactics, commonly known as "ruses," ICE agents have attempted to gain an individual's consent to enter their home or other private property without a warrant.
Through this request, Requestor seeks to inform the public on a matter of great public concern — ICE's use of ruses and other deceptive tactics. These practices may violate federal law and the Constitution, as well as applicable agency policies. They also undermine public safety. When community members cannot distinguish between local law enforcement officers and immigration agents, they may fear reporting crimes or cooperating as witnesses. Indeed, local law enforcement agencies, including the Los Angeles Police Department, have repeatedly affirmed that public safety is improved when immigrant community members can report crimes and assist in investigations without fear that doing so may lead to their deportation. See, e.g., Peter Holley, "Defiant LAPD chief says department will refuse to help Donald Trump's deportation efforts," Washington Post (Nov. 15, 2016), available at https://www.washingtonpost.com/news/post-nation/wp/2016/11/15/defiant-la... ("This is a population we police by creating partnerships, not by targeting them because of their immigration status.").
The public interest in the issue of ICE's use of ruses is reflected by the growing amount of media coverage and political interest in the topic. See, e.g., Alex Emslie, "S.F. Police Commissioners Want ICE Agents to Stop 'Impersonating' Police," KQED News (Jan. 18, 2018), available at https://ww2.kqed.org/news/2018/01/18/s-f-police-commissioners-want-ice-a... Jennifer Medina and Miriam Jordan, "A Broader Sweep," New York Times (July 21, 2017), available at https://www.nytimes.com/interactive/2017/07/21/us/immigration-enforcemen... (detailing ICE's use of fictitious story to gain consent to enter a home); Nicholas Rondinone and Vinny Vella, "Hartford Mayor: ICE Agents Were Misleading In Attempt to Detain Immigrant," Hartford Courant (Mar. 20, 2017), available at http://www.courant.com/breaking-news/hc-hartford-ice-0321-20170320-story... Sara Sanchez, "ICE 'ruses' have immigrant community on edge," El Paso Times (Mar. 4, 2017), available at http://www.elpasotimes.com/story/news/immigration/2017/03/04/ice-ruses-h... Joel Rubin, "It's Legal for an immigration agent to pretend to be a police officer outside someone's door. But should it be?," LA Times (Feb. 21, 2017), available at http://www.latimes.com/local/lanow/la-me-immigration-deportation-ruses-2... Office of Congresswoman Nydia Velazquez, "Velazquez Seeks to Block Immigration Feds from Identifying as Local Police," Press Release (Apr. 6, 2017), available at https://velazquez.house.gov/media-center/press-releases/velazquez-seeks-... Jacqueline Stevens, "ICE Agents' Ruse Operations," The National (Dec. 18, 2009), available at https://www.thenation.com/article/ice-agents-ruse-operation/; Steven Greenhouse, "Immigration Sting Puts 2 U.S. Agencies at Odds," New York Times (July 16, 2005), available at http://www.nytimes.com/2005/07/16/politics/immigration-sting-puts-2-us-a.... This widespread and growing media coverage and interest from public officials reflects the public's intense interest in ICE's use of ruse tactics in its enforcement practices.
Because these records concern a critical function of the government on a matter of significant public interest and concern, FOIA mandates their disclosure. See 5 U.S.C. § 552.
The ACLU of Southern California ("ACLU SoCal") is a non-profit organization dedicated to defending and securing the rights granted by the U.S. Constitution and Bill of Rights. ACLU SoCal's work focuses on immigrants' rights, the First Amendment, equal protection, due process, privacy, and furthering civil rights for disadvantaged groups. As part of its immigrants' rights work, ACLU SoCal monitors ICE enforcement practices. ACLU SoCal disseminates information to the public through its website and social media platforms, "Know Your Rights" documents, and other educational and informational materials. The ACLU SoCal regularly submits FOIA requests to DHS and other agencies — including, for example, on ICE's policies and practices for worksite immigration enforcement, and USCIS's policies and practices for the adjudication of naturalization applications — and publicizes the information it obtains through its website, newsletters and "Know Your Rights" presentations and materials.
- All policies, procedures, presentations, trainings, memoranda, directives, rules or other guidance concerning ICE agents'3 use of ruses4 or other tactics to conceal their identity, including but not limited to the following:
- Most recent version of the ICE Enforcement and Removal Operations Fugitive Operations Handbook;
- Most recent version of the Detention and Deportation Field Officer's Manual;
- All policies, procedures, presentations, trainings, memoranda, directives, rules or other guidance concerning how ICE agents should identify themselves during enforcement actions;
- All policies, procedures, presentations, trainings, memoranda, directives, rules or other guidance concerning compliance with 8 C.F.R. § 287.8(c)(2)(iii) (requiring immigration officers executing an arrest to "[i]dentify himself or herself as an immigration officer who is authorized to execute an arrest" and "[s]tate that the person is under arrest and the reason for the arrest");
- All policies, procedures, presentations, trainings, memoranda, directives, rules or other guidance concerning ICE agents' dress on duty, including their uniform, badges, insignias or other identifying marks;
- All policies, procedures, presentations, trainings, memoranda, directives, rules or other guidance concerning the Fourth Amendment and search and seizure, including home entry, including but not limited to the following:
- "Regular Fourth Amendment training" provided to "ERO semi-annually," trainings given to agents "before any large scale operation," and "ongoing OPLA provided training." See AILA/ICE Liaison Meeting Minutes at 5 (Oct. 26, 2017 ) (attached hereto as Exhibit A);
- All notices, reports, records, internal memoranda, or other documents regarding ruses conducted by ICE agents from the Los Angeles Field Office from January 1, 2013 to February 1, 2018, including but not limited to the following:
- All memorandum documenting ICE's attempts to obtain the permission of a "local agency head or the local chief of security of the private entity" prior to engaging in ruse, as required by the Memorandum from John P. Torres, "Addition to Section 5, Chapter 19 (Field Operations and Tactics) of the Detention and Deportation Field Officer's Manual (DDFM) – USE OF RUSES DURING ARREST OPERATIONS" (Aug. 15, 2005) (Exhibit B), Memorandum from John P. Torres, "Use of Ruses in Enforcement Operations" (Mar. 6, 2006) (Exhibit C), and Memorandum from Marcy M. Forman and John P. Torres, "Use of Ruses in ICE Enforcement Operations" (Aug. 22, 2006) (Exhibit D);
- Any records concerning permission given by an "affected entity," including a "local agency head or local chief of security of a private entity," concerning the use of a ruse by ICE agents (see Memorandum from John P. Torres, "Addition to Section 5, Chapter 19 (Field Operations and Tactics) of the Detention and Deportation Field Officer's Manual (DDFM) – USE OF RUSES DURING ARREST OPERATIONS" (Exhibit B));
- All records concerning "issues raised by the affected entity" and guidance provided by "the Deputy Assistant Director, in consultation with the Office of Principal Legal Advisor" concerning the use of a ruse, as required by Memorandum from John P. Torres, "Use of Ruses in Enforcement Operations," (Mar. 6, 2006) (Exhibit C);
- All records concerning the "use of a health or safety-based ruse," including the "pre-approv[al]" of the Assistant Secretary of ICE, as required by Memorandum from John P. Torres, "Use of Ruses in Enforcement Operations" (Mar. 6, 2006) (Exhibit C);
- Any records concerning enforcement operations in which a ruse tactic was employed, including any field operations worksheets submitted in connection with the operation and post-investigation reports;
- All videos depicting situations in which ICE agents employed ruse tactics;
- Any records concerning legal claims, complaints or letters received about the use of ruses from (i) other federal or local agencies; (ii) private entities; or (iii) affected individuals, and any responses provided by ICE;
- All records containing, describing, pertaining to, or referring to aggregate statistical reports or data regarding the use of ruses in enforcement operations;
- All press releases, statements, summaries or records of communications regarding ruses issued by ICE internally, between ICE and other federal and local agencies, or between ICE and other private entities such as the media; and
- Any reports, assessments or studies produced by the DHS Office of the Inspector General ("OIG") or other oversight entity regarding the use of ruses by ICE and any communications between the entity and ICE regarding the report, assessment or study.
Requestor asks that any records that exist in electronic form be provided in electronic format on a compact disc.
LIMITATION OR WAIVER OF SEARCH AND REVIEW FEES
We request a limitation of processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) ("fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . educational or noncommercial scientific institution . . . or a representative of the news media") and 6 C.F.R. § 5.11(d)(1) (search fees shall not be charged to "representatives of the news media").
The information sought in this request is not sought for a commercial purpose. The Requestor is a non-profit organization that intends to disseminate the information gathered by this request to the public at no cost, including through the Requestor's website and social media. The ACLU SoCal regularly disseminates information to its members through action alerts, emails and newsletters (the ACLU SoCal has more than 28,000 members and, nationwide, the ACLU has more than 500,000 members). See http://www.aclusocal.org/about/. Requestor may also compile a report or other publication (such as Know Your Rights materials) on the government's use of ruses in enforcement operations based on information gathered through this FOIA. Requestor has repeatedly used information gathered through FOIA to disseminate information to the public through such forums. See, e.g., http://www.aclu.org/immigrants-rights/immigrant-detainee-rights-are-rout... (ACLU SoCal report based on documents disclosed through FOIA). See also http://www.aclusocal.org/about/report-directory/ (compiling recent ACLU SoCal reports).
The term 'a representative of the news media' means "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii). The statutory definition does not require that the requestor be a member of the traditional media. As long as the requestor meets the definition in any aspect of its work, it qualifies for limitation of fees under this section of the statute.
Requestor qualifies as a "representative of the news media" under the statutory definition, because it routinely gathers information of interest to the public, uses editorial skills to turn it into distinct work, and distributes that work to the public. See Electronic Privacy Information Center v. Department of Defense, 241 F. Supp. 2d 5 (D.D.C. 2003) (non-profit organization that gathered information and published it in newsletters and otherwise for general distribution qualified as representative of news media for purpose of limiting fees). Courts have reaffirmed that non-profit requestors who are not traditional news media outlets can qualify as representatives of the new media for the purposes of the FOIA, including after the 2007 amendments to the FOIA. See ACLU of Washington v. U.S. Dep't of Justice, No. C09-0642RSL, 2011 WL 887731, at *18 (D. Wash. Mar. 10, 2011) (finding that the ACLU qualifies as a "representative of the news media"). See also Cause of Action v. F.T.C., 799 F.3d 1108, 1125 (D.C. Cir. 2015) (observing that a "public interest advocacy organization" can qualify as a "representative of the news media"). Accordingly, any fees charged must be limited to duplication costs.
We request a waiver or reduction of all costs pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) ("Documents shall be furnished without any charge . . . if disclosure of the information is in the public interest because it 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"); see also 6 C.F.R. § 5.11(k).
The public interest fee waiver provision "is to be liberally construed in favor of waivers for noncommercial requesters." McClellan Ecological See page Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987). The Requestor need not demonstrate that the records would contain evidence of misconduct. Instead, the question is whether the requested information is likely to contribute significantly to public understanding of the operations or activities of the government, good or bad. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1314 (D.C. Cir. 2003).
Disclosure of the information and report sought is in the public interest and will contribute significantly to the public's understanding of ICE enforcement practices. The information sought will be critical to further inform the public whether such practices are in line with legal standards.
The requested records relate directly to the operations or activities of the government that potentially impact fundamental rights and freedoms. The records are not sought for commercial use, and the Requestor plans to disseminate the information disclosed through print and other media to the public at no cost. As demonstrated above, the Requestor has both the intent and ability to convey any information obtained through this request to the public.
The Requestor states "with reasonable specificity that [their] request pertains to operations of the government," and "the informative value of a request depends not on there being certainty of what the documents will reveal, but rather on the requesting party having explained with reasonable specificity how those documents would increase public knowledge of the functions of the government." Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Health and Human Services, 481 F. Supp. 2d 99, 107-109 (D.D.C. 2006).
In the event a waiver or reduction of costs is denied, please provide prior notice if the anticipated costs exceed $100.
We look forward to your reply to the records request within twenty (20) business days, as required under 5 U.S.C. § 552(a)(6)(A)(i). Please specify the search that was undertaken to locate records responsive to this request. If any responsive records are withheld in whole or part, we ask that you justify all withholdings by reference to specific exemptions of the FOIA and release all segregable portions of otherwise exempt material as required by FOIA.
Please contact Michael Kaufman at (213) 977-5232 with any questions. Please supply all records to:
ACLU of Southern California
1313 West 8th Street
Los Angeles, CA 90017
Thank you for your prompt attention.
Senior Staff Attorney
ACLU of Southern California
1 The term "records" as used herein includes, but is not limited to, all records or communications preserved in electronic or written form, including but not limited to correspondence, documents, data, videotapes, audio tapes, faxes, files, e-mails, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, manuals, technical specifications, training manuals, or studies. top
2 The term "concerning" means referring to, describing, evidencing, commenting on, responding to, showing, analyzing, reflecting, or constituting. top
3 As used herein, the term "ICE agent" refers to any ICE agent, official, or other employee authorized to conduct enforcement actions, including arrests. top
4 As used herein, the term "ruse" refers to an ICE agent: (i) affirmatively misrepresenting herself as affiliated with a state or local law enforcement agency, other government agency or private entity; (ii) affirmatively misrepresenting the purpose for which the agent is seeking entry to a home or private property, or to communicate with an individual; (iii) wearing uniforms or clothing that suggests that the agent is affiliated with a state or local law enforcement agency, other government agency or private entity; or (iv) failing to identify herself as an ICE agent prior to seeking entry to a home or private property, communicating with an individual, or effecting an arrest. top