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. The magistrate set a hearing on our motion for September 28.