Open Government on the Docket

ACLU of Illinois, et al, v. U.S. Department of Homeland Security and U.S. Customs and Border Protection

Status:
Active
Case Dates:
Wednesday, 12 April, 2017 - ongoing
Facts:

On February 2, 2017, we filed a Freedom of Information Act (FOIA) request with the U.S. Customs and Border Protection (CBP) Chicago field office. We and nine other ACLU affiliates (the “Midwest Affiliates” – Illinois, Indiana, Iowa, Kentucky, Minnesota, Missouri, Nebraska, South Dakota, Wisconsin) requested information as to how CBP interpreted and executed Donald Trump’s first Muslim Ban executive order at airports and ports of entry located in the Midwestern states. Twelve groups of other ACLU affiliates simultaneously sought similar records from the other CBP regional offices across the country. We requested, and set forth the grounds for, expedited processing of the FOIA request. At the time of filing, we anticipated that the government would probably not respond fully to the request, and that enforcement litigation would be necessary. Subsequently, as predicted, the government failed to respond to any of the requests, even though more than 45 business days had elapsed since they received our request.

Legal Theory:

CBP violated FOIA’s requirements that agencies provide public records within the statutory time period. Under FOIA, U.S. agencies must produce a determination as to expedited processing within 10 business days; provide a determination as to whether they will comply with a request within 20 business days; and ultimately provide records unless there is a legal basis for refusing to do so. CBP failed to respond in any way.

Status:

On April 12, 2017, we filed our Complaint in the U.S. District Court for the Northern District of Illinois. We asked the court to require CBP and the Department of Homeland Security (DHS, CBP’s parent agency) to respond to the Midwest Affiliates’ FOIA request for records relating to the implementation of the Muslim Ban, and to require disclosure of the records. The filing of this action was coordinated with 12 other FOIA lawsuits filed by the other groups of ACLU affiliates across the country. The ACLU of Ohio is both a plaintiff and co-counsel in this lawsuit.

On May 8, 2017, Defendants filed a motion with the Judicial Panel on Multidistrict Litigation, asking the panel to consolidate and hear the 13 lawsuits. On May 12, Defendants filed motions to stay proceedings in each of the district courts pending the resolution of the motion to transfer the cases to the Judicial Panel on Multidistrict Litigation. On May 30, we filed our opposition to Defendants’ Motion to Stay, and on June 6, Defendants filed their reply. On June 28, the Court granted Defendants’ Motion to Stay. On August 2, the Judicial Panel issued an order denying the transfer.

On August 10 the Northern District Court of Illinois held a status hearing, and on August 21 the parties filed a joint status report clarifying the legal and factual issues in the case and their communications to date, and suggested a schedule for further proceedings. On August 22, Defendants filed their Answer to our Complaint. On September 15, we filed a motion asking the Court to set a schedule for the production of the documents we had originally requested on February 2.

On September 20, the Court held a status hearing. Subsequently the Court ordered the parties to communicate weekly regarding the search terms used to identify responsive documents and other issues to move discovery forward, and ordered the parties to file a joint status report by October 20. On September 22 the case was referred to a magistrate to manage discovery and settlement discussions.

On September 28, 2017 the magistrate continued our motion to set a production schedule. On October 2 the magistrate held a status hearing to continue discussing our motion, during which the parties agreed upon search terms to be used to identify responsive documents, and agreed to limit the scope of Defendants’ initial review. The Court requested that Defendants file a memorandum of law on the Justice Department’s authority to aggregate all of the various lawsuits’ FOIA requests, and ordered the parties to this lawsuit to continue to meet weekly to try to resolve production scheduling issues. On October 11, Defendants filed their memorandum. On October 20, the parties filed a joint status report describing the progress on the production of documents to date. On October 23, we filed our response to Defendants’ aggregation memorandum, arguing that aggregation was inappropriate.
On October 24, 2017 the magistrate held a status hearing and set a briefing schedule for our pending motion to set a production schedule. On November 6, 2017, Defendants filed their opposition to our motion to set production schedule and on November 13, 2017 we filed our reply. On November 15, the court held a hearing on our motion to set a production schedule, and again continued the motion to November 21, 2017. The court requested that the parties report back on that date as to the following: (1) that we confirm that the current set of search terms constitute a “reasonable effort,” such that future search requests would be justified only in “extraordinary circumstances,” and (2) that the defendant determine what level of production capacity it could perform and report monthly to the court. On November 21, the Court granted our motion to set production schedule and ordered that on the 15th day of every month, the defendants must file a brief status report with the court regarding information from the previous month as to: the number of employees who worked on the FOIA production request, the number of hours that government lawyers worked on the project, and the number of pages of the four “priority” records custodians that were processed. The court ordered the defendants to process 950 pages per month, and set the first of such status reports for January 16, 2018. The next status hearing in the case was set for June 20, 2018.