Judge Compels Discovery of ICE Databases

MANHATTAN (CN) - A federal judge asked on Thursday both parties to resolve a dispute over a FOIA request by nonprofit advocacy groups for the Immigration and Customs Enforcement "Secure Communities" program. The National Day Laborer Organizing Network said in its original complaint that the program created "error-prone civil-immigration databases" of fingerprints that ICE uses for deportation.

Joining as plaintiffs were the Center for Constitutional Rights and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.

The defendants are the U.S. Immigration and Customs Enforcement Agency, the Department of Homeland Security, the Executive Office for Immigration Review, the FBI, and the Office of Legal Counsel.

The plaintiffs said that Secure Communities was implemented nationwide "without sufficient transparency, oversight, or public engagement."

"Secure Communities subjects people interacting with the criminal justice system to an automatic and indiscriminate civil immigration investigation. Through Secure Communities, ICE identifies large numbers of people for deportation by cross-checking fingerprints submitted through criminal FBI fingerprint queries against error-prone civil immigration databases," according to the complaint.

When the first complaint was filed, on April 27, 2010, Secure Communities was in its "pilot phase," in 145 jurisdictions; plans had been laid to expand it into every jail in the country by 2013, the plaintiffs said.

The plaintiffs sought records to get "information necessary to facilitate meaningful public discourse and increase government transparency."

After the government produced records, the plaintiffs asked U.S. District Judge Shira Scheindlin to resolve a dispute about the format in which the records were produced.

In her 27-page opinion, Scheindlin wrote that after the plaintiffs filed their complaint, they negotiated with the government to create Rapid Production Lists to turn over thousands of pages of records.

"Defendants failed to produce any records by the agreed-upon July 30 date, but nearly two thousand pages of records were produced on August 3, August 13, September 8, and October 22, 2010. These productions did not satisfy the July 7 agreement," Scheindlin wrote.

The ruling states that the plaintiffs asked for "National policy memoranda, legal memoranda or communications relating to the ability of states or localities to opt-out or limit their participation.

In January of this year, the government sent the plaintiffs five unsearchable PDF files with just under 3,000 pages of documents stripped of identifying data, which merged electronic and paper files.

Scheindlin wants the parties to resolve their dispute over formatting.

"Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to 'meet and confer,' 'cooperate' and generally make every effort to 'communicate'...

"Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication," Scheindlin wrote, ending her Feb. 3 ruling.

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