Class Status Premature in US Customs FOIA Case

     SAN FRANCISCO (CN) – A federal judge said Wednesday more proof is needed to certify a class of immigrants and attorneys suing the government for failing to answer thousands of Freedom of Information Act requests.
     Lead plaintiff Meredith Brown, a Glendale attorney, sued U.S. Customs and Border Protection in March, claiming the agency has refused to respond to nearly 38,000 FOIA requests.
     The plaintiffs say the agency made them wait more than a year for information, despite a law requiring a response within 20 days. The failure to respond affects the proposed class’s ability to obtain permanent legal residency in the United States among other issues, the plaintiffs claim.
     During an hearing Wednesday, U.S. District Judge James Donato said the plaintiffs need more proof to show the department engaged in a pattern and practice of illegally delaying FOIA requests.
     “I have nothing from the plaintiffs on evidence relating to the alleged pattern and practice that Customs and Border Protection is allegedly engaging in,” said Donato. “I understand you think there are systemic violations. That is not enough.”
     The judge said he would defer ruling on the motion for class certification for six months while the plaintiffs conduct discovery to dig up dirt on the agency’s FOIA processing policies and procedures.
     Donato also ordered the government to move promptly in responding to the plaintiffs’ discovery requests.
     “I don’t want to hear that a highly placed person is not available,” said Donato. “We’re not going to depose the secretary. I understand that, but people in D.C. are going to be made available promptly so we get this done in six months.”
     U.S. Attorney Emily Nestler argued that each FOIA request is an individualized request for information, and some may take longer than others. Due to the individualized nature of each request, Nestler said the plaintiffs lack the commonality required for class certification.
     The judge rejected Nestler’s argument, citing the law’s requirement that FOIA requests be answered in 20 days with a 10-day extension.
     “You don’t have the flexibility to say I will take 40 days for one person because it’s more complicated,” said Donato. “What’s the uncommonness?”
     Nestler also asked the judge to deny class certification based on the different nature of each FOIA request and the inability of the class to achieve uniform relief.
     “Every time one request gets pushed up or accelerated, it causes the other requests to get moved back because there’s a finite amount of resources that goes into processing these requests,” said Nestler.
     The judge again said he would delay ruling on the motion until the plaintiffs present more evidence of the agency’s FOIA processing practices, including how much funding and manpower it devotes to answering such requests.
     “I want to see some good, thorough, deep documentation on pattern, practice and policy,” Donato said. “Why is this a pattern and practice and not a series of unfortunate coincidences?”
     If the plaintiffs do achieve class certification, it would be the first time a court has certified a class under the Freedom of Information Act, according to the defendant’s memo opposing the motion for class certification.
     Donato asked the plaintiffs to submit a supplemental brief to accompany their motion for class certification within six months.

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