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. The Judicial Panel denied the transfer on August 2.

Parties conferred with the Court on discovery and briefing schedules, and agreed upon search terms to be used to identify responsive documents, as well as a limit to the scope of the Defendants’ initial review. On October 11, Defendants filed a memorandum of law on the Justice Department’s authority to aggregate all of the various lawsuits’ FOIA requests. We responded that aggregation was inappropriate.

After a hearing and briefings, 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.

On January 16, 2018, Defendants filed their January status report, documenting the first month’s processing and production of documents as required by the Court’s order, and filed monthly reports through June.

Defendants claim to have produced all responsive, non-exempt records that they had identified from the relevant custodians in the CBP Chicago Field Office, and the affiliate groups continue to review the records to assess whether Defendants have fulfilled our request. The parties continue to meet and confer about ways to resolve or narrow the disputes in the case and all three status reports so far ordered by the Court have been submitted timely.

As a result of the partial government shutdown at the beginning of 2019, all dates and deadlines were extended by 42 days.