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1 LATHAM&WATKINSLLP
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Susan S. Azad (CA BarNo. 145471)
susan.azad@lw. com
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Natasha I. Rieger (CA Bar No. 258263)
natasha. rieger@lw. com
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Victor Leung (CA Bar No. 268590)
victor.leung@lw. com
5 Thomas Alcorn (CA Bar No. 287688)
thomas. alcorn@lw. com
6 355 South Grand Avenue
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Los Angeles, California 90071-1560
Telephone: (213) 485-1234
Facsimile: (213) 891-8763
Attorneys for Plaintiff
9 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN
10 CALIFORNIA
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
16 AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
17 SOUTHERN CALIFORNIA,
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Plaintiff
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v.
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UNITED STATES DEPARTMENT
21 OF JUSTICE, OFFICE OF THE
SOLICITOR GENERAL, and
22 EXECUTIVE OFFICE FOR
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IMMIGRATION REVIEW,
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Defendants.
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3-04 55
COMPLAINT FOR INJUNCTIVE
RELIEF FOR VIOLATION OF THE
FREEDOM OF INFORMATION
ACT, 5 U.S.C. 552
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I.
INTRODUCTION
The American Civil Liberties Union Foundation of Southern
California ("Plaintiff') brings this action under the Freedom of Information Act
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(the "FOIA"), 5 U.S.C. 552, for injunctive and other appropriate relief to enforce
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its right to agency records from two components, the Executive Office for
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Immigration Review (the "EOIR") and the Office of the Solicitor General (the
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"OSG"), of the United States Department of Justice (the "DOJ") (collectively,
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"Defendants").
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2. On March 15, 2012, Plaintiff submitted a FOIA request to Defendant
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EOIR and to Defendant OSG seeking any and all records relating to or concerning
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the basis for the government's assertions to the United States Supreme Court in its
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brief in Demore v. Kim, 538 U.S. 510 (2003) regarding the average time taken to
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complete removal proceedings and appeals for individuals detained pursuant to 8
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U.S.C. 1226(c) (the "Request") (A true and correct copy of the Request is
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attached as Exhibit A). Defendants EOIR and OSG acknowledged receipt of the
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Request in letters dated March 22, 2012 and April18, 2012 respectively. Although
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more than a year has elapsed, Defendants have issued no further response to the
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Request.
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3.
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Plaintiff now asks this Court to order Defendants to immediately
process all records responsive to the Request and to enjoin Defendants from
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charging Plaintiff fees for processing the Request.
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4.
II.
JURISDICTION AND VENUE
This Court has subject matter over this action and personal
jurisdiction over the parties pursuant to 5 U.S. C. 552(a)(4)(B). This Court also
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has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331.
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5. Venue is proper in this district under 5 U.S.C. 552(a)(4)(B) and 28
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1 U.S.C. 1391(e).
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III.
PARTIES
4 6. Plaintiff is a statewide, nonpartisan, nonprofit organization of over
5 40,000 members that is dedicated to the preservation of civil liberties and civil
6 rights. Plaintiff has litigated a number of immigrants' rights cases as part of its
7 overall mission of litigation and advocacy to ensure immigrants' rights. Plaintiff
8 maintains an enduring interest in protecting the due process rights of immigrants
9 and educating the public about governmentpolicies involving the detention and
10 deportation of non-citizens.
11 7. Defendant DOJ is a department of the executive branch of the United
12 States government and is an agency within the meaning of5 U.S.C. 552()(1).
13 8. Defendant OSG is a component of Defendant DOJ. It conducts and
14 supervises government litigation in the United States Supreme Court.
15 9. Defendant EOIR is a component ofDefendant DOJ. One of its
16 functions is to adjudicate immigration court proceedings and cases.
17 10. The Request seeks records from both Defendant OSG and Defendant
18 EOIR, and both Defendants are responsible for complying with the Request
19 pursuant to 5 U.S. C. 552(a)(3).
20 IV.
21 STATUTORY FRAMEWORK
22 11. The FOIA, 5 U.S.C. 552, mandates disclosure of records held by a
23 federal agency in response to a request for such records by a member of the public
24 unless the requested records fall within certain narrow statutory exemptions.
25 12. The basic purpose of the FOIA is to enable the public to hold the
26 government accountable for its actions by fostering transparency and public
27 scrutiny of governmental operations and activities. Through access to government
28 information, the FOIA helps the public better understand the government, thereby
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1 enabling a vibrant and functioning democracy.
2 13. Any member of the public may make a request for records to an
3 agency of the United States under the FOIA. An "agency" is defined as "each
4 authority of the Government of the United States, whether or not it is within or
5 subject to review by another agency" pursuant to 5 U.S.C. 551(1) and "includes
6 any executive department, military department, Government corporation,
7 Government controlled corporation, or other establishment in the executive branch
8 of the Government (including the Executive Office ofthe President), or any
9 independent regulatory agency" pursuant to 5 U.S.C. 552()(1).
10 14. Pursuant to 5 U.S.C. 552(a)(6)(A), an agency that receives a FOIA
11 request must respond in writing to the requestor within 20 business days after the
12 receipt of the request except in certain narrow circumstances. In its response, the
13 agency must inform the requestor whether or not it intends to comply with the
14 request, provide reasons for its determination, and inform the requestor of his or
15 her right to appeal the determination.
16 15. A FOIA requestor who has been denied records may appeal the denial
1 7 to the agency. The agency must make a determination on the appeal within 20
18 business days of receipt of the appeal. 5 U.S.C. 552(a)(6)(A)(ii).
19 16. A FOIA requestor is deemed to have exhausted all administrative
20 remedies if the agency fails to comply with the statutory time limits. 5 U.S.C.
21 552(a)(6)(C)(i).
22 17. The FOIA requires an agency to timely disclose all records responsive
23 to a FOIA request that do not fall within nine narrowly construed statutory
24 exemptions. 5 U.S.C. 552(a)(3)(A); 5 U.S.C. 552(b)(l)-(b)(9).
25 18. The FOIA also requires an agency to make a reasonable search for
26 responsive records. 5 U.S.C. 552(a)(3)(C).
27 19. Upon complaint, a district court has jurisdiction to enjoin the agency
28 from withholding records and to order production of records that are subject to
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1 disclosure. 5 U.S.C. 552(a)(4)(B).
2 v.
3 FACTUAL ALLEGATIONS
4 20. On or about August 2002, Defendant OSG made representations to
5 the United .States Supreme Court regarding the average time taken to complete
6 removal proceedings and appeals for individuals detained pursuant to 8 U.S.C.
7 1226( c) (the "Representations"). Specifically, Defendant OSG represented in its
8 petitioner's brief in Demore v. Kim, 538 U.S. 510 (2003), that:
9 The Executive Office for Immigration Review has calculated that, in
1 0 cases where the alien is charged with being removable on grounds that
11 trigger mandatory detention under Section 1226( c), its immigration
12 judges complete removal proceedings in an average time of 47 days
13 and a median time of 30 days-both far below the six-month period that
14 this Court determined was presumptively reasonable for detention
15 after a final order of removal. [Citation]. In approximately 85% of
16 the cases, the immigration judge's decision is not appealed to the BIA
1 7 and becomes a final decision, and the alien thereafter would be
18 detained (if ordered removed) under 8 U.S.C. 1231(a) rather than
19 under Section 1226( c). In the relatively small percentage of cases that
20 are appealed to the BIA, the average time required for disposition of
21 the appeal-from the filing of the appeal through the BIA's issuance of
22 its decision-is approximately four months. The median time is
23 slightly shorter (114 days). Accordingly, detention during the
24 pendency of removal proceedings cannot fairly be compared to the
25 "indefmite, perhaps permanent, detention" (533 U.S. at 699) of aliens
26 that raised a constitutional concern in Zadvydas [v. Davis, 533 U.S.
27 678 (2001)].
28 21. The Supreme Court expressly relied on the Representations in its
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1 written opinion upholding the constitutionality of 8 U.S.C. 1226( c) in Kim: "The
2 [EOIR] has calculated that, in 85% of the cases in which aliens are detained
3 pursuant to 1226(c), removal proceedings are completed in an average time of 47
4 days and[,] ... [i]n the remaining 15% of cases, ... appeal takes an average of four
5 months .... "
6 22. On March 15, 2012, Plaintiff submitted the Request to Defendant
7 OSG and to Defendant EOIR. The Request specifically seeks any and all
8 documents related to Defendant OSG's Representations and "any and all
9 documents showing the data relied upon to make these representations and the
10 sources of that data[,] ... [including], but [] not limited to, any and all
11 correspondence related this representation." (See Request, Ex. A at 3).
12 23. Plaintiff also sought a waiver of search, review, and duplication fees
13 on the grounds that it is a "representative[] of the news media" and that disclosure
14 of the requested records is "in the public interest because it is likely to contribute
15 significantly to public understanding of the operations or activities of the
16 government and is not primarily in the commercial interest of the requester." (See
17 Request, Ex. A, at 4; see also 5 U.S.C. 552(a)(4)(A)(ii), (iii); 28 C.F.R.
18 16.11(d)(1), (k) (June 1, 1998)).
19 24. On March 22, 2012, Defendant EOIR responded to the Request by
20 letter, acknowledging receipt of the Request and stating that it would exceed the
21 statutory 20-day deadline to respond because the Request presented "unusual
22 circumstances[.]" (A true and correct copy of Defendant EOIR's letter is attached
23 as Exhibit B). Defendant EOIR stated that "an additional10 day extension will be
24 added to the standard processing time since your request either requires the
25 collection of records from field offices, or involves a search for numerous
26 documents that will necessitate a thorough and wide-range search of records at
27 headquarters."
28 25. In a separate letter also dated March 22,2012, Defendant EOIR
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1 granted Plaintiffs fee waiver because the Request met "the threshold as defined in
2 the FOIA regulations[.]" (A true and correct copy of Defendant EOIR's letter is
3 attached as Exhibit C).
4 26. Thereafter, on April 18, 2012, Defendant OSG similarly issued a letter
5 stating that the Request involved "unusual circumstances" due in part to the fact
6 that the proper processing of the Request required consultation with another
7 agency having a substantial interest in the determination of the Request and stating
8 that Defendant OSG decided to "invok[ e] the ten-working day extension in 5
9 U.S.C. 552(a)(6)(B)." (A true and correct copy of Defendant OSG's letter is
10 attached as Exhibit D). Defendant OSG estimated that it would respond to the
11 Request no later than May 2, 2012.
12 27. Defendants have provided no further response as of the date of filing
13 of this Complaint. They have failed to respond to the Request by their own
14 extended deadlines, which were over 11 months ago, or the statutory deadline for
15 responding to a FOIA request as set forth in 5 U.S.C. 552(a)(6).
16 28. At no point did Defendants request any additional time to respond
17 pursuant to 5 U.S.C. 552 (a)(6)(B)(ii) (allowing the responding agency to notify
18 the requestor if the request cannot be processed within the time limit specified and
19 requiring the agency to provide the requestor with an opportunity to limit the scope
20 of the request or to arrange an alternative deadline).
21 29. On April15, 2013, Plaintiff timely filed administrative appeals of
22 Defendants' constructive denial of the Request with the Office of Information
23 Policy (the "OIP"), another component of Defendant DOJ. (A true and correct
24 copy of the appeal letter is attached as Exhibit E).
25 30. On May 2, 2013, the OIP acknowledged receipt of Plaintiffs
26 administrative appeals against Defendant EOIR and Defendant OSG. (True and
27 correct copies of the acknowledgment letters are attached as Exhibit F).
28 31. Plaintiff has received no further response or correspondence from
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1 Defendants or the OIP. No records have been provided by Defendants, and
2 Defendants have not indicated that they have begun searching for or processing
3 responsive records.
4 32. Defendants' failure to respond within the statutory deadlines
5 constitutes a constructive denial of both the original Request and the appeal of the
6 constructive denial of the Request.
7 VI.
8 CAUSES OF ACTION
9 FIRST CAUSE OF ACTION
10 Violation ofFOIA for Failure to Make Reasonable Efforts to Search for Records
11 Responsive to Plaintiffs Request
12 33. Plaintiff repeats andre-alleges the allegations contained in paragraphs
13 1 through 32 above, inclusive.
14 34. Plaintiff has a legal right under FOIA to enforce Defendants'
15 obligation to make reasonable efforts to search for documents responsive to
16 Plaintiffs Request, and there exists no basis for Defendants' failure to conduct a
17 full and complete search for responsive records.
18 35. Defendants' failure to conduct a full and complete search for
19 responsive documents violates the FOIA, 5 U.S.C. 552(a)(3)(C), and
20 corresponding agency regulations.
21 36. Through Plaintiffs appeal to the OIP, Plaintiff has exhausted all
22 applicable administrative remedies with respect to Defendants' wrongful
23 withholding of the requested records. 5 U.S.C. 552(a)(6)(C)(i).
24 3 7. Plaintiff is entitled to injunctive relief with respect to the required
25 search for the requested documents. 5 U.S.C. 552(a)(4)(B).
26 SECOND CAUSE OF ACTION
27 Violation of the FOIA for Wrongfully Withholding Agency Records Sought by
28 Plaintiffs Request
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1 38. Plaintiff repeats andre-alleges the factual allegations contained in
2 paragraphs 1 through 3 7 above, inclusive.
3 39. Plaintiff has a legal right under the FOIA to obtain the agency records
4 it requested from Defendants on March 15,2012, and there exists no basis for
5 Defendants' failure to provide such records.
6 40. Defendants' wrongful withholding of agency records sought by
7 Plaintiffs Request violates the FOIA, 5 U.S.C. 552(a)(3)(A), and corresponding
8 agency regulations.
9 41. Through Plaintiffs appeal to the OIP, Plaintiff has exhausted all
10 applicable administrative remedies with respect to Defendants' wrongful
11 withholding of the requested records. 5 U.S.C. 552(a)(6)(C)(i).
12 42. Plaintiff is entitled to injunctive relief with respect to the release and
13 disclosure of the requested documents. 5 U.S.C. 552(a)(4)(B).
14 THIRD CAUSE OF ACTION
15 Violation of the FOIA for Failure to Classify Plaintiff as a Representative of the
16 News Media and Reduce or Waive All Fees
17 43. Plaintiff repeats and re-alleges the allegations contained in paragraphs
18 1 through 42 above, inclusive.
19 44. Plaintiffhas a legal right to be classified as a "representative of the
20 news media" for purposes of assessing processing fees associated with Plaintiffs
21 Request. 5 U.S.C. 552(a)(4)(A)(ii)(II).
22 45. Defendant OSG' s failure to classify Plaintiff as a representative of the
23 news media for purposes of assessing processing fees associated with Plaintiff's
24 Request is in violation of5 U.S.C. 552(a)(4)(A)(ii)(II) and applicable agency
25 regulations.
26 FOURTH CAUSE OF ACTION
27 Violation of the FOIA for Failure to Acknowledge the Request as Being in the
28 Public Interest and Reduce or Waive All Fees
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1 46. Plaintiff repeats and re-alleges the allegations contained in paragraphs
2 1 through 45 above, inclusive.
3 47. Plaintiff has a legal right to a "public interest" fee waiver because
4 disclosure of the requested material is in the public interest, is likely to contribute
5 to the public's understanding of the operations of the government, and is not in the
6 commercial interest of Plaintiff. 5 U.S.C. 552(a)(4)(A)(iii).
7 48. Defendant OSG's constructive denial of a ''public interest'' fee
8 waiver" in connection with Plaintiffs Request is in violation of 5 U.S.C.
9 552(a)(4)(A)(iii) and applicable agency regulations.
10 VII.
11 REQUESTED RELIEF
12 WHEREFORE, Plaintiff requests that this Court award it the following relief:
13 1. Order Defendants to immediately conduct a full and complete
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search for all responsive records;
Order Defendants to promptly disclose the requested records in
their entirety and make copies available to Plaintiff;
Enjoin Defendants from charging Plaintiff fees for the
processing of the Request, including all fees related to
searching for, reviewing, duplicating, or otherwise producing
the requested records;
Award Plaintiff its reasonable costs and attorneys' fees; and
Grant such other relief as the Court may deem just and proper.
24 Dated: D, 2013
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LATHAM & WATKINS LLP
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By 5u StV\ A :ZQJ /-rcA
Susan S. Azad '
Attorneys for Plaintiff
American Civil Liberties Union Foundation
of Southern California
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COMPLAINT
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tUHHHY I ! EiH.IAliTY
March 15, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Office of General Counsel - FOIA Service Center
FOIA/Privacy Act Requests
5107 Leesburg Pike, Suite 1903
Falls Church, Virginia, 22041
703-605-1297
Office of the Solicitor General
Department of Justice
950 Pennsylvania A venue, NW
Room6627
Washington, DC 20530-0001
(202) 616-9406
Attention: James K. Davis
Email: OSGFOIA@usdoj .gov
Dear Sir or Madam:
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This letter constitutes a request for records made pursuant to the Freedom of Information
Act ("FOIA"), 5 U.S.C. 552, and on behalf of the ACLU of Southern California, the ACLU
Immigrants Rights Project, and the Stanford Law School Immigrants' Rights Clinic. This
request seeks the basis of the government's assertions in its brief to the Supreme Court in
Demore v. Kim, 538 U.S. 510 (2003) regarding the average length of detention for persons
detained under 8 U.S.C. 1226(c).
The requested information is in the public interest because the U.S. Supreme Court relied
on these assertions in upholding 8 U.S. C. 1226(c)'s constitutionality in Kim. See 538 U.S. at
529 ("The Executive Office for Immigration Review has calculated that, in 85% of the cases in
which aliens are detained pursuant to l226(c), removal proceedings are completed in an
average time of 4 7 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining
15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of
Immigration Appeals, appeal takes an average of four months, with a median time that is slightly
shorter. Id., at 40."). The disclosure of this information will allow the public to see the data on
which the government's assertions in Kim were based, and on which the Supreme Court relied.
Thus, the information that this request seeks is vitally important to the continuing validity of 8
U.S.C. 1226(c) and therefore of interest to the public.
Chilir Rohde Dnunl<Ei Miretl
Chain;. Emeriti Danny Goldberg 1\lfan 1\. Jonas Elur"t Irving Lichtenstein, MD' Mohn Laurie Ostrow Swntey K Sheinbaurn
Exewtivoe HEctor 0. Vitlagn:\ Chief Counsel MtH"k D. D"f<lputy Exocutive Dire dar .Jarnr:s Gilliam Chief Financial Office1 Brenda Mm:il
Commun1catiom> !nrector J.!JS,)!1 Howe Development Oireo::tor S<1ndy Grah;;rn .. Jones Director of Stratlifgil: Partnerships Vicki Fox
l\!g1ll Diredor & Manheim Family AUomey far First Rights .J. E\iasher11 OO:>puty Director Ahilan l. Atulanantham
mmchH ot Policy Advotacy Clarissa Woo mrer.tor of Community Engagement Elvia Meza ExP.cutiva !lire<:tr.1r l!meritus f<amon;;J Hipston deceased
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REQUESTORS
The ACLU of Southern California (ACLU/SC) is a non-profit organization dedicated
to defending and securing the rights granted by the U.S. Constitution and Bill of Rights.
ACLU/SC'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 work,
ACLU/SC disseminates information to the public through newsletters, its website, "Know Your
Rights" documents, and other educational and informational materials. The ACLU/SC regularly
submits FOIA requests to DHS and other agencies- including, for example, on ICE's policies
and practices for worksite immigration enforcement, and US CIS'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.
The Immigrants' Rights Project of the ACLU Foundation (ACLU-IRP) is a non-
profit organization dedicated to expanding and enforcing the civil liberties and civil rights of
non-citizens. As part of its work, ACLU-IRP engages in impact litigation to enforce immigrants'
rights and combat public and private discrimination against immigrants; engages in advocacy,
web outreach, and public education on immigrants' rights issues; and monitors and analyzes the
actions of federal, state, and local government agencies and actors that impact non-citizens in the
United States. To this end, ACLU-IRP has made numerous FOIA requests- including requests
to the FBI regarding its use of national security databases, and requests to Immigration and
Customs Enforcement regarding its use of mandatory detention and post-order custody reviews-
and has publicized the information obtained through those request through its website, emails to
membership and other publications.
The Stanford Immigrants' Rights Clinic represents individual immigrants and engages
in multidisciplinary advocacy on behalf of immigrants' rights organizations. Clients include
asylum-seekers, immigrant survivors of domestic violence applying to change their status, and
non-citizens with old or minor criminal convictions who seek humanitarian relief from
deportation, including persons in detention. Under the supervision of experienced immigration
attorneys, the clinic gives students the opportunity to assume responsibility for all aspects of case
preparation, including interviewing clients and witnesses, investigating facts, writing pleadings,
developing case strategies, and conducting legal research. Students also frequently collaborate
with immigrants' rights organizations on impact litigation, public education, grassroots
advocacy, and media work, including drafting and disseminating press releases.
LIBERTY l JU5l'lCE! EQUALITY
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REQUEST
We seek disclosure of any and all records
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relating to or concerning
2
the following:
The Solicitor General's representations to the Supreme Court of
the United States in Demore v. Kim, 538 U.S. 510 (2003) in the
petitioner's brief on pages 39 and 40 regarding the average time
taken to complete removal proceedings and appeals for individuals
detained pursuant to 8 U.S.C. 1226(c). Brief for Petitioners,
Demore v. Kim, 538 U.S. 510 (2003) (No. 01-1491), 2002 WL
31016560, at *39-40. This includes, but is not limited to, any and
all documents showing the data relied upon to make these
representations and the sources ofthat data. This also includes, but
is not limited to, any and all correspondence related this
representation.
The Requesters ask that any records that exist in electronic fonn be provided in electronic
format on a compact disc. If any of the requested records or information are not kept in a
succinct format, we request the opportunity to view the documents in your offices.
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. 5.1l(d)(l)
(search fees shall not be charged to "educational institutions" and "representatives of the news
media"). The information sought in this request is not sought for a commercial purpose. The
Requestors are non-profit organizations and an educational institution that intend to disseminate
the infom1ation gathered by this request to the public at no cost, including through the
Requestors' websites, newsletters and other publications. This information is of critical
importance to noncitizens facing lengthy detention under 8 U.S.C. 1226(c), courts and
immigration practitioners evaluating the meaning of Kim, and the public at large who have an
interest in knowing whether the government's representations to the Supreme Court are truthful.
1
The term "records" as used herein includes but is not limited to all records or communications
preserved in electronic or written fom1, 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.
2
The term "concerning" means referring to, describing, evidencing, commenting on, responding
to, showing, analyzing, reflecting, or constituting.
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The term educational institution means "an institution of undergraduate higher education
[or] an institution of graduate higher education ... that operates a program of scholarly
research." 6 C.F.R. 5.11 (b)(4). 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 tum 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
requester is a member of the traditional media. As long as the requester meets the definition in
any aspect of its work, it qualifies for limitation of fees under this section of the statute.
For the reasons stated above, Requestor Stanford Law School Immigrants' Rights Clinic
is an "educational institution" within the meaning of the FOIA. In addition, the Requestors
qualify as "representatives of the news media" under the statutory definition, because they
routinely gather information of interest to the public, use 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
infom1ation 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,
including a recent court decision finding that Requestor ACLU Immigrants' Rights Project is
entitled to "news media" status. See ACLU of Washington v. U.S. Dep 't of Justice, No. C09-
0642RSL, 2011 WL 887731, at *18 (D. Wash. Mar. 10, 2011). Accordingly, any fees charged
must be limited to duplication costs.
WAIVER OR REDUCTION OF ALL 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 ofthe
operations or activities of the government and is not primarily in the commercial interest of the
requester"); see also 6 C.F.R. 5.ll(k).
The public interest fee waiver provision "is to be liberally construed in favor of waivers
for noncommercial requesters." McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d
1282, 1284 (9th Cir. 1987). The Requestors need not demonstrate that the records would contain
evidence of misconduct. Instead, the question is whether the requested infonnation is likely to
contribute significantly to public understanding ofthe 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 infonnation sought is in the public interest and will contribute
significantly to public understanding of the situation of person's detained under 8 U.S.C.
1226(c). At a time when numerous proposals are being made to reform our immigration laws, it
is critical to the democratic process that voters understand how the current laws are working in
practice. Further, this information will help judges and immigration practitioners better
I
LIBERTY I JUSTICE I EtllJALirY
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understand Kim. The statistics in the Solicitor General's brief were key to the Supreme Court's
analysis in that case, and knowing the basis for those statistics would inform any analysis ofthe
continuing vitality of Kim and/or its applicability to new factual situations or legislation. Finally,
this information is important to the public and courts' evaluation of the credibility of future
representations by the government regarding these issues.
The records are not sought for commercial use, and the Requestors plan to disseminate
the information disclosed through print and other media to the public at no cost. As
demonstrated above, the Requestors have both the intent and ability to convey any information
obtained through this request to the public.
The Requestors state "with reasonable specificity that [their] request pertains to
operations ofthe 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. US.
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 notify me in advance if the
anticipated costs exceed $100.
CONCLUSION
On January 21, 2009, President Barack Obama issued a Memorandum regarding the
FOIA in which he stated that "[a]ll agencies should adopt a presumption in favor of
disclosure, in order to renew their commitment to the principles embodied in FOIA, and
to usher in a new era of open Government. The presumption of disclosure should be
applied to all decisions involving FOIA." Memorandum, Freedom oflnformation Act, 74
Fed. Reg. 4683 (Jan. 21, 2009). The President's Memorandum underscores the
importance of prompt and full disclosure of documents requested pursuant to the FOJA.
A g e n c i ~ must make every effort to disclose requested documents and not frivolously
withhold infonnation that could be released to the public without compromising a
significant government interest. We hope this request will be considered in light of President
Obama's directive regarding transparency and open government.
This is not a Privacy Act request and therefore notarized signatures have not been
included.
liBI"RT\' I JOST!Ct I Et)UALI1"/
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Page 6
Please contact Michael Kaufman at (213) 977-5232 with any questions. Please supply all
records to:
Michael Kaufman, Esq.
ACLU of Southern California
1313 West 8th Street
Los Angeles, CA 90017
Thank you for your prompt attention.
Sincerely,
d - - ( ~
Michael Kaufman
Staff Attomey
ACLU/SC
I
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'-IBEUTY I JUSTICE l EllUALITY
EXHIBITB
Michael Kaufinan
American Civil Liberties Union of Southern CA
1313 West Eighth St.
Los Angeles, CA 90017
RE: Freedom oflnformation Act Request
Demore v. Kim
Dear Michael Kaufman:
(
U.S. Department of Justice
Executive Office for Immigration Review
Office of the General Counsel
5107 Leesburg Pike, Suite 2600
Falls Church. Virginia 22041
March 22, 2012
This response acknowledges receipt ofyour Freedom oflnformation Act (FOIA) request. Your
request has been assigned control number: 2012-10105.
If you have filed a fee waiver request, the fee waiver will be addressed in a separate
letter. Otherwise, your request constitutes an agreement to pay fees that may be chargeable up to $25
without notice. Most requests do not require any fees; however, if fees in excess of$25.00 are
required, we will notify you beforehand. Fees may be charged for searching records at the rate of
$4.00/$7.00/$10.25 per quarter hour, and for duplication of copies at the rate of$.1 0 per copy. The first
I 00 copies and two hours of research time are not charged, and charges must exceed $14.00 before we
will charge a fee.
Ordinarily, FOIA requires an agency to respond within 20 working days after receipt ofthe
request. EOIR endeavors to meet this standard, however the FOIA does permit a ten day extension of
this time period. Pursuant to 5 U.S.C. 552(a)(6)(B), we are notifying you that due to 'unusual
circumstances' an additional 10 day extension will be added to the standard processing time since your
request either requires the collection of records from field offices, or involves a search for numerous
documents that will necessitate a thorough and wide-range search of records at headquarters. If you
care to narrow the scope of your request, please contact our office.
We will give your request every consideration consistent with applicable law. If you have any
further questions, please contact the FOIA Service Center at 703-605-1297.
EOIR# 2012-10105
EXHIBIT C
Michael Kaufman
American Civil Liberties Union of Southern CA
1313 West Eighth St.
Los Angeles, CA 90017
RE: Freedom of Information Act Request
Demore v. Kim
Dear Michael Kaufman:
(
U.S. Department of Justice
Executive Office for Immigration Review
Qffice of the Genercll Counsel
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
March 22, 2012
The Executive Office for Immigration Review has received your letter. In your letter, you seek
a fee waiver of your Freedom oflnformation Act (FOIA) request.
Upon further review, it has been determined that your fee waiver request meets the threshold as
defined in the FOIA regulations, and your request for a fee waiver has been granted. If you have
any further questions, please contact me at (703) 605-1297.
--
EOIR# 2012-10105
EXHIBITD
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(
U.S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
VIA U.S. MAIL and EMAIL to <mkaufman@aclu-sc.org>
Michael Kaufman, Esq.
ACLU of Southern Califomia
1313 West 8th Street
Los Angeles, CA 90017
Re: OSG FOIA No. 2012-0229
Dear Mr. Kaufman:
I am writing in regard to your Freedom of Infonnation Act (FOIA) request to the Office of
the Solicitor General (OSG), dated March 15,2012, and received by this Office on March 21,2012.
Your request seeks any and all records relating to or concerning the statements made in the gov-
ernment's brief in Demore v. Kim regarding the average time taken to complete removal proceedings
and appeals for individuals detained pursuant to 8 U .S.C. 1226( c). We have assigned the following
OSG tracking number to your request: OSG FOIA No. 2012-0229.
Your request presents "unusual circumstances" under FOIA, because the proper processing
ofthe request would require, inter alia, consultation with another agency having a substantial interest
in the detennination of your request. See 5 U.S.C. 552(a)(6)(B)(iii). In light of these unusual
circumstances, we are invoking the ten-working day extension in 5 U.S.C. 552(a)(6)(B). See 28
C.F.R. 16.5(c)(l). We anticipate that we will respond to your request on or before May 2, 2012.
Sincerely,
James K. Davis
FOIA Coordinator
Office of the Solicitor General
\
EXHIBITE
Thomas Alcorn
(213) 891-7358
Thomas.Aicorn@lw.com
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LATHAM&WATKI NSLLP
April15, 2013
VIA U.S. MAIL and FAX
Office of Information Policy
U.S. Department of Justice
Suite 11050
1425 New York Avenue, N.W.
Washington, D.C. 20530-0001
Fax: (202) 514-1009
Email: DOJ.OIP.FOIA@usdoj.gov
(
355 South Grand Avenue
Los Angeles, California 90071-1560
Tel: +1.213.485.1234 Fax: +1.213.891.8763
www.lw.com
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Madrid Washington, D.C.
Milan
Re: Appeal of Freedom of Information Act Request Numbers 2012-10105 (EOIR) and
2012-0229 (OSG)
Dear FOIA Officer:
On March 15, 2012, the ACLU-SC, along with the ACLU Immigrants' Rights Project
and the Stanford Law School Immigrants' Rights Clinic (collectively, the "Requestors") made a
Freedom of Information Act request ("FOIA"), pursuant to 5 U.S.C. 552, to the Executive
Office for Immigration Review ("EOIR") and the Office of the Solicitor General ("OSG") (the
"FOIA Request").
Through the FOIA Request, the Requestors sought any and all records relating to or
concerning the basis for the government's assertions to the United States Supreme Court in its
brief in Demore v. Kim, 538 U.S. 510 (2003) regarding the average time taken to complete
removal proceedings and appeals for individuals detained pursuant to 8 U.S.C. 1226(c).
Exhibit A at 1, 3 (FOIA Request). The Requestors also sought a limitation of processing fees
pursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II) and 6 C.P.R. 5.11(d)(1), and a waiver or reduction
of all costs pursuant to 5 U.S.C. 552(a)(4)(A)(iii) and 6 C.P.R. 5.11(k).
On March 22, 2012, the EOIR acknowledged receipt of the FOIA Request and granted
the fee waiver request. Exhibit B (EOIR Acknowledgement Letter). The EOIR also stated that
the FOIA Request presented "unusual circumstances" justifying a ten-working day extension of
the statutory deadline because the FOIA Request required the collection of documents from field
offices or a thorough search at EOIR headquarters. Id. Thereafter, on April18, 2012, the OSG
responded and stated that the FOIA Request presented "unusual circumstances" due in part to the
LA\3119967.6
April15, 2013
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LATHAM&WATKI NSLLP
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fact that the proper processing of the FOIA Request required consultation with another agency
having a substantial interest in the determination of the FOIA Request. Exhibit C (OSG
Acknowledgment Letter). The OSG estimated that it would respond to the FOIA Request no
later than May 2, 2012. !d.
The OSG and EOIR have failed to respond to the FOIA Request by their own extended
deadlines, which were over 11 months ago, or the statutory deadline for responding to a FOIA
request as set forth in 5 U.S.C. 552(a)(6). See 5 U.S.C. 552 (a)(6)(B)(i)("In unusual
circumstances ... the [20 working day] time limit[] ... may be extended by written notice ....
No such notice shall specify a date that would result in an extension for more than ten working
days [except in situations not applicable here]."). There is no reason to believe that this was due
to an inability to meet the deadlines, as the OSG and EOIR did not at any point request
additional time. See, e.g., 5 U.S.C. 552 (a)(6)(B)(ii) (allowing the responding agency to notify
the requestor if the request cannot be processed within the time limit specified and requiring the
agency to provide the requestor with an opportunity to limit the scope of the request or to arrange
an alternative deadline), Even if the OSG and EOIR needed additional time to process the FOIA
Request, 11 months is more than adequate.
By their inaction, the OSG and EOIR have failed to comply with their obligation to
search for and produce documents responsive to the FOIA Request, constituting a "constructive
denial" of the FOIA Request. See 5 U.S.C. 552(a)(6)(A)(i) ("Each agency, upon any request for
records ... , shall- (i) determine within 20 [working] days ... after the receipt of any such
request whether to comply with such request and shall immediately notify the person making
such request of such determination and the reasons therefor ... "); 5 U.S.C. 552(a)(6)(C)(i)
("Any person making a request to any agency for records ... shall be deemed to have exhausted
his administrative remedies with respect to such request if the agency fails to comply with the
applicable time limit provisions of this paragraph."); Cazalas v. US. Dep 't of Justice, 660 F.2d
612, 621 (5th Cir. Nov. 1981) ("The time-limit provisions and the exhaustion of administrative
remedy provision [were intended] 'to strengthen the procedural aspects of the Freedom of
Information Act ... in order to contribute to the fuller and faster release of information, which is
the basic objective of the Act.' The House Report indicated unequivocally that 'information is
often useful only if it is timely' and that 'excessive delay' by agencies made it necessary that
they 'be required to respond to inquiries and administrative appeals within specific time limits.'
Further, it was the concern of the House amendments to make failure to meet those time limits
tantamount to exhaustion of administrative remedies by the requestor."); Allnet Commc 'n Servs.
v. FCC, 800 F. Supp. 984, 987 fn. 4 (D.D.C. 1992) ("An agency's failure to act on an
administrative FOIA appeal within the twenty days prescribed in 5 U.S.C. 552(a)(6)(A)(ii)
constitutes a constructive denial and administrative remedies are deemed to be exhausted/').
The Requesters hereby appeal the OSG and EOIR's constructive denials of the FOIA
Request. Under applicable law, federal agencies must make a "good faith effort to conduct a
search for the requested records, using methods which can be reasonably expected to produce the
information requested." Oglesby v. US. Dep 't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). After
conducting a thorough search, federal agencies must produce all agency records that are not
exempt by statute. 5 U.S.C. 552 (a)(3), (b). In this case, the OSG and EOIR have not
2
LA\3119967.6
Aprll15, 2013
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LATHAM&WATKINSLLP
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indicated that they have attempted to conduct the statutorily required search for responsive
records. We respectfully request that the constructive denial ofthe FOIA Request be reversed
and that the OSG and EOIR be ordered to conduct the good faith search and production of
records required by statute.
I
We look forward to receiving a written response to this appeal within 20 working days
from the date of your receipt of this appeal letter. See 5 U.S.C. 552(a)(6)(A)(ii). We reserve
the right to a judicial appeal in the event that the OSG and EOIR's refusal to conduct a complete
search and full production of records is affirmed in full or in part, or in the event that we do not
receive a t i m ~ l y response to this appeal.
Thank you in advance for your prompt attention to this matter. If you have any
questions, please contact me at (213) 891-7358, or at Thomas.Alcorn@lw.com.
cc: Michael Kau:finan, Esq.
Ahilan Arulanantham, Esq.
Susan Azad, Esq.
Natasha I. Rieger, Esq.
Victor Leung, Esq.
Enclosures
LA\31!9967.6
Very truly yours,
~ ~ ~
Thomas C. Alcorn
ofLATHAM & WATKINS LLP
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EXHIBIT A
FOIA Request
See attached.
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j:"'- ----- ]
I w t
L-------------- .. ----.J
LHHEIHY I.JI.lSTICE ! EIHHH.ITY
March 15, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Office of General Counsel- FOIA Service Center
FOIA/Privacy Act Requests
5107 Leesburg Pike, Suite 1903
Falls Church, Virginia, 22041
703-605-1297
Office of the Solicitor General
Department of Justice
950 Pennsylvania A venue, NW
Room6627
Washington, DC 20530-0001
(202) 616-9406
Attention: James K. Davis
Email: OSGFOIA@usdoj.gov
Dear Sir or Madam:
(
This letter constitutes a request for records made pursuant to the Freedom oflnformation
Act ("FOIA"), 5 U.S.C. 552, and on behalfofthe ACLU ofSouthern California, the ACLU
Immigrants Rights Project, and the Stanford Law School Immigrants' Rights Clinic. This
request seeks the basis of the government's assertions in its briefto the Supreme Court in
Demore v. Kim, 538 U.S. 510 (2003) regarding the average length of detention for persons
detained under 8 U.S.C. 1226(c).
The requested information is in the public interest because the U.S. Supreme Court relied
on these assertions in upholding 8 U.S.C. 1226(c)'s constitutionality in Kim. See 538 U.S. at
529 ("The Executive Office for Immigration Review has calculated that, in 85% of the cases in
which aliens are detained pursuant to 1226(c), removal proceedings are completed in an
average time of 4 7 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining
15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of
Immigration Appeals, appeal takes an average of four months, with a median time that is slightly
shorter. Id., at 40."). The disclosure of this information will allow the public to see the data on
which the government's assertions in Kim were based, and on which the Supreme Court relied.
Thus, the information that this request seeks is vitally important to the continuing validity of 8
U.S.C. 1226(c) and therefore of interest to the public.
Chnir RDhde Doc;!JlW5 Mirell
Chain> firrwriti Danny Goldberg /1ltan 1\. Jonas Burt Irving Lichtenstein, MD jart Mohn Laurie Ostrow* Stanley K. Sheinbaum
lkctcJr 0. Vill.aflf"i:l ChicJ Counsel Mark D. Rosenbr.rum Oc<:puty Executive Oiredot .J<irnes Gilliam Chief FiMntial Offit:et Brenda Mttu il
D!recltir Jason Howe Development Director Sandy Graharn .. Jones Director of Partnerships Vicki Fox
niredcw & Family AUomey fer First Rights f'etor .J. Elias berg i)@puty l,.(!gai mrector Ahilan L Arul;;,nantharn
!Jirottor of Policy A.dvotacy Clsris!;a Woo Oiredor of Community Engagement. Elvia Meza Oiredor Emeritus f{amons Hipston cece<.'lsed
---------
13>13 WEST EIGHTH STREET LOS ANGLb5 CA 900'1'7 t 2:'i:$.'i'I'J.950U I 2'13.91'1.5299 ACLU-SC.DHG
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REQUESTORS
The ACLU of Southern California (ACLU/SC) is a non-profit organization dedicated
to defending and securing the rights granted by the U.S. Constitution and Bill of Rights.
ACLU/SC'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 work,
ACLU/SC disseminates information to the public through newsletters, its website, "Know Your
Rights" documents, and other educational and informational materials. The ACLU/SC regularly
submits FOIA requests to DHS and other agencies- including, for example, on ICE's policies
and practices for worksite immigration enforcement, and users'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.
The Immigrants' Rights Project of the ACLU Foundation (ACLU-IRP) is a non-
profit organization dedicated to expanding and enforcing the civil liberties and civil rights of
non-citizens. As part of its work, ACLU-IRP engages in impact litigation to enforce immigrants'
rights and combat public and private discrimination against immigrants; engages in advocacy,
web outreach, and public education on immigrants' rights issues; and monitors and analyzes the
actions of federal, state, and local government agencies and actors that impact non-citizens in the
United States. To this end, ACLU-IRP has made numerous FOIA requests- including requests
to the FBI regarding its use of national security databases, and requests to Immigration and
Customs Enforcement regarding its use of mandatory detention and post-order custody reviews-
and has publicized the information obtained through those request through its website, emails to
membership and other publications.
The Stanford Immigrants' Rights Clinic represents individual immigrants and engages
in multidisciplinary advocacy on behalf of immigrants' rights organizations. Clients include
asylum-seekers, immigrant survivors of domestic violence applying to change their status, and
non-citizens with old or minor criminal convictions who seek humanitarian relief from
deportation, including persons in detention. Under the supervision of experienced immigration
attorneys, the clinic gives students the opportunity to assume responsibility for all aspects of case
preparation, including interviewing clients and witnesses, investigating facts, writing pleadings,
developing case strategies, and conducting legal research. Students also frequently collaborate
with immigrants' rights organizations on impact litigation, public education, grassroots
advocacy, and media work, including drafting and disseminating press releases.
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REQUEST
We seek disclosure of any and all records
1
relating to or conceming
2
the following:
The Solicitor General's representations to the Supreme Court of
the United States in Demore v. Kim, 538 U.S. 510 (2003) in the
petitioner's brief on pages 39 and 40 regarding the average time
taken to complete removal proceedings and appeals for individuals
detained pursuant to 8 U.S.C. 1226(c). Brief for Petitioners,
Demore v. Kim; 538 U.S. 510 (2003) (No. 01-1491), 2002 WL
31016560, at *39-40. This includes, but is not limited to, any and
all documents showing the data relied upon to make these
representations and the sources ofthat data. This also includes, but
is not limited to, any and all correspondence related this
representation.
The Requesters ask that any records that exist in electronic fonn be provided in electronic
format on a compact disc. If any of the requested records or information are not kept in a
succinct format, we request the opportunity to view the documents in your offices.
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)(l)
(search fees shall not be charged to "educational institutions" and "representatives of the news
media"). The information sought in this request is not sought for a commercial purpose. The
Requestors are non-profit organizations and an educational institution that intend to disseminate
the infom1ation gathered by this request to the public at no cost, including through the
Requestors' websites, newsletters and other publications. This information is of critical
importance to noncitizens facing lengthy detention under 8 U.S.C. 1226(c), courts and
immigration practitioners evaluating the meaning of Kim, and the public at large who have an
interest in knowing whether the government's representations to the Supreme Court are truthful.
1
The term "records" as used herein includes but is not limited to all records or communications
preserved in electronic or written fom1, including but not limited to correspondence, documents,
data, videotapes, audio tapes, faxes, fi1es, e-mails, guidance, guidelines, evaluations, instructions,
analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules,
manuals, technical specifications, training manuals, or studies.
2
The term "concerning" means referring to, describing, evidencing, commenting on, responding
to, showing, analyzing, reflecting, or constituting.
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The term educational institution means "an institution of undergraduate higher education
[or] an institution of graduate higher education ... that operates a program of scholarly
research." 6 C.F.R. 5.11 (b)(4). 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
requester is a member of the traditional media. As long as the requester meets the definition in
any aspect of its work, it qualifies for limitation of fees under this section of the statute.
For the reasons stated above, Requestor Stanford Law School Immigrants' Rights Clinic
is an "educational institution" within the meaning of the FOIA. In addition, the Requestors
qualify as "representatives of the news media" under the statutory definition, because they
routinely gather information of interest to the public, use 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
infom1ation 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,
including a recent court decision finding that Requestor ACLU Immigrants' Rights Project is
entitled to "news media" status. See ACLU of Washington v. U.S. Dep 't of Justice, No. C09-
0642RSL, 2011 WL 887731, at *18 (D. Wash. Mar. 10, 2011). Accordingly, any fees charged
must be limited to duplication costs.
WAIVER OR REDUCTION OF ALL 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 ofthe
operations or activities of the government and is not primarily in the commercial interest of the
requester"); see also 6 C.F.R. 5.ll(k).
The public interest fee waiver provision "is to be liberally construed in favor of waivers
for noncommercial requesters." McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d
1282, 1284 (9th Cir. 1987). The Requestors need not demonstrate that the records would contain
evidence of misconduct. Instead, the question is whether the requested infonnation 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 infonnation sought is in the public interest and will contribute
significantly to public understanding of the situation of person's detained under 8 U.S.C.
1226(c). At a time when numerous proposals are being made to reform our immigration laws, it
is critical to the democratic process that voters understand how the current laws are working in
practice. Further, this information will help judges and immigration practitioners better
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LIBERTY I JUSTICE I UUALirY
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understand Kim. The statistics in the Solicitor General's brief were key to the Supreme Court's
analysis in that case, and knowing the basis for those statistics would inform any analysis of the
continuing vitality of Kim and/or its applicability to new factual situations or legislation. Finally,
this information is important to the public and courts' evaluation of the credibility of future
representations by the government regarding these issues.
The records are not sought for commercial use, and the Requestors plan to disseminate
the information disclosed through print and other media to the public at no cost. As
demonstrated above, the Requestors have both the intent and ability to convey any information
obtained through this request to the public.
The Requestors state "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 notify me in advance if the
anticipated costs exceed $100.
CONCLUSION
On January 21, 2009, President Barack Obama issued a Memorandum regarding the
FOIA in which he stated that "[a]ll agencies should adopt a presumption in favor of
disclosure, in order to renew their commitment to the principles _embodied in FOIA, and
to usher in a new era of open Government. The presumption of disclosure should be
applied to all decisions involving FOIA." Memorandum, Freedom ofinformation Act, 74
Fed. Reg. 4683 (Jan. 21, 2009). The President's Memorandum underscores the
importance of prompt and full disclosure of documents requested pursuant to the FOJ A.
must make every effort to disclose requested documents and not frivolously
withhold infonnation that could be released to the public without compromising a
significant government interest. We hope this request will be considered in light of President
Obama's directive regarding transparency and open government.
This is not a Privacy Act request and therefore notarized signatures have not been
included.
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Please contact Michael Kaufman at (213) 977-5232 with any questions. Please supply all
records to:
Michael Kaufman, Esq.
ACLU of Southern California
1313 West 8th Street
Los Angeles, CA 90017
Thank you for your prompt attention.
Sincerely,
d-(4--
Michael Kaufman
Staff Attorney
ACLU/SC
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UBEllTY I JUSTICE l E!l!JALHY
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EXHIBITB
EOIR Acknowledgement Letter
See attached.
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Michael Kaufinan
American Civil Liberties Union of Southern CA
1313 West Eighth St.
Los Angeles, CA 90017
RE: Freedom oflnformation Act Request
Demore v. Kim
Dear Michael Kaufman:
(
U.S. Department of Justice
Executive Office for Immigration Review
Office of the General Counsel
5 J 07 Leesburg Pike, Suite 2600
Falls Church. Virginia 22041
March 22, 2012
This response acknowledges receipt ofyour Freedom oflnformation Act (FOIA) request. Your
request has been assigned control number: 2012-10105.
If you have filed a fee waiver request, the fee waiver will be addressed in a separate
Jetter. Otherwise, your request constitutes an agreement to pay fees that may be chargeable up to $25
without notice. Most requests do not require any fees; however, if fees in excess of$25.00 are
required, we will notify you beforehand. Fees may be charged for searching records at the rate of
$4.001$7.00/$10.25 per quarter hour, and for duplication of copies at the rate of $.1 0 per copy. The first
100 copies and two hours of research time are not charged, and charges must exceed $14.00 before we
will charge a fee.
Ordinarily, FOIA requires an agency to respond within 20 working days after receipt ofthe
request. EOIR endeavors to meet this standard, however the FOIA does permit a ten day extension of
this time period. Pursuant to 5 U.S.C. 552(a)(6)(B), we are notifying you that due to 'unusual
circumstances' an additional tO day extension will be added to the standard processing time since your
request either requires the collection of records from field offices, or involves a search for numerous
documents that will necessitate a thorough and wide-range search of records at headquarters. If you
care to narrow the scope of your request, please contact our office.
We will give your request every consideration consistent with applicable law. If you have any
further questions, please contact the FOIA Service Center at 703-605-1297.
EOIR# 2012-10105
(
Michael Kaufman
American Civil Liberties Union of Southern CA
1313 West Eighth St.
Los Angeles, CA 90017
RE: Freedom oflnformation Act Request
Demore v. Kim
Dear Michael Kaufman:
(
U.S. Department of Justice
Executive Office for Immigration Review
Office ofthe General Counsel
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
March 22, 2012
The Executive Office for Immigration Review has received your letter. In your letter, you seek
a fee waiver of your Freedom of Information Act (FOIA) request.
Upon further review, it has been determined that your fee waiver request meets the threshold as
defined in the FOIA regulations, and your request for a fee waiver has been granted. If you have
any further questions, please contact me at (703) 605-1297.
Sincerely,
EOIR# 2012-10105
--
EXHIBITC
OSG Acknowledgment Letter
See attached.
(
(
(
U.S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
VIA U.S. MAIL and EMAIL to <mkaufman@aclu-sc.01g>
Michael Kaufman, Esq.
ACLU of Southern California
1313 West 8th Street
Los Angeles, CA 90017
Re: OSG FOIA No. 2012-0229
Dear Mr. Kaufman:
I am writing in regard to your Freedom of Infonnation Act (FOIA) request to the Office of
the Solicitor General (OSG), dated March 15,2012, and received by this Office on March 21,2012.
Your request seeks any and all records relating to or concerning the statements made in the gov-
ernment's brief in Demore v. Kim regarding the average time taken to complete removal proceedings
and appeals for individuals detained pursuant to 8 U .S.C. 1226( c). We have assigned the following
OSG tracking number to your request: OSG FOIA No. 2012-0229.
Your request presents "unusual circumstances" under FOIA, because the proper processing
ofthe request would require, inter alia, consultation with another agency having a substantial interest
in the detennination of your request. See 5 U.S.C. 552(a)(6)(B)(iii). In light of these unusual
circumstances, we are invoking the ten-working day extension in 5 U.S.C. 552(a)(6)(B). See 28
C.P.R. 16.5(c)(l). We anticipate that we will respond to your request on or before May 2, 2012.
Sincerely,
James K. Davis
FOIA Coordinator
Office of the Solicitor General
EXHIBITF
Telephone: (202) 514-3642
Thomas C. Alcorn, Esq.
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
Re: Request No. 2012-10105
Dear Mr. Alcorn:
(
U.S. Department of Justice
Office of Information Policy
Washington, D.C. 20530
May 2, 2013
This is to advise you that your administrative appeal from the action of the Executive
Office for Immigration Review was received by this Office on April15, 2013.
The Office of Information Policy has the responsibility of adjudicating such appeals. In
an attempt to afford each appellant equal and impartial treatment, we have adopted a general
practice of assigning appeals in the approximate order of receipt. Your appeal has been assigned
number AP-2013-02899. Please mention this number in any future correspondence to this
Office regarding this matter. Please note that if you provide an e-mail address or another
electronic means of communication with your appeal, this Office may respond to your appeal
electronically even if you submitted your appeal to this Office via regular U.S. mail.
We will notify you of the decision on your appeal as soon as we can. If you have any
questions about the status of your appeal, you may contact me at the number above. If you have
submitted your appeal through this Office's online electronic appeal portal, you may also obtain
an update on the status of your appeal by logging into your portal account.
Sincerely,
c5S?,d . . . s;?.
-
Priscilla Jones
Supervisory Administrative Specialist
\
(
Telephone: (202) 514-3642
Thomas C. Alcorn, Esq.
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
Re: Request No. 2012-0229
Dear Mr. Alcorn:
(
U.S. Department of Justice
Office oflnformation Policy
Washington, D. C. 20530
May 2, 2013
This is to advise you that your administrative appeal from the action of the Office of the
Solicitor General was received by this Office on April15, 2013.
The Office of Information Policy has the responsibility of adjudicating such appeals. In
an attempt to afford each appellant equal and impartial treatment, we have adopted a general
practice of assigning appeals in the approximate order of receipt. Your appeal has been assigned
number AP-2013-02900. Please mention this number in any future correspondence to this
Office regarding this matter. Please note that if you provide an e-mail address or another
electronic means of communication with your appeal, this Office may respond to your appeal
electronically even if you submitted your appeal to this Office via regular U.S. mail.
We will notify you of the decision on your appeal as soon as we can. If you have any
questions about the status ofyour appeal, you may contact me at the number above. If you have
submitted your appeal through this Office's online electronic appeal portal, you may also obtain
an update on the status of your appeal by logging into your portal account.
Sincerely,
-
Priscilla Jones
Supervisory Administrative Specialist
\