Judge Rejects Border Patrol’s FOIA Arguments

SAN FRANCISCO (CN) - A federal judge refused to dismiss a class action accusing U.S. Customs and Border Protection of a pattern and practice of delaying response to Freedom of Information Act requests.

Immigration attorneys and their clients sued U.S. Customs and Border Protection in March for missing the deadline to respond to FOIA requests - 38,000 of them .

The government claimed that its failure to respond was not actionable.

The "main thrust" of the government's motion to dismiss "is that violation of the FOIA response deadline is not a cognizable claim," U.S. District Judge James Dosanto wrote on Sept. 17.

Dosanto didn't buy it.

"This argument flies in the face of FOIA's plain meaning and several cases finding that unexcused delay is a perfectly valid claim.

"The statutory setting is straightforward. 'The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.' N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)."

Congress requires agencies to "make a determination' about whether to comply with the request' within 20 business days, but they can extend the response time by another 10 when warranted. Requesters who do not hear by then can sue.

"The government says that the case should be dismissed because an agency's failure to meet the response deadline is not an actionable violation of FOIA," Dosanto wrote, summing up the government's argument.

He found that "wholly at odds with the statute and cases construing it."

"The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent."

Customs and Border Protection also claimed that FOIA does not allow for lawsuits over "inaction" on FOIA requests.

"CBP appears to believe that an actionable 'withholding' occurs only when an agency locates documents and refuses to produce them," Dosanto wrote. "But it points to nothing in the statute or a decision that supports such a restrictive definition, and simply disregards the reality that failing to respond to a FOIA request is as much a withholding as intentionally locking away responsive information."

He denied the motion to dismiss and gave the agencies 10 days to answer the complaint.

Immigration attorneys Meredith Brown of Glendale, Calif., Kelly Ryan of Denver, and Jeri Flynn of Baton Rouge claimed the defendants were more than a year overdue and sued on March 12 on behalf of 11 clients.

At the end of fiscal year 2013, CBP had nearly 38,000 FOIA requests that had been pending for more than 20 days, the attorneys said. This backlog was more than nine times greater than it had been at the end of 2011, despite enormous increases in Border Patrol funding.

The failure to respond affects the proposed class's ability to obtain legal permanent residency in the United States, according to the lawsuit.

Customs and Border Protection received 41,381 FOIA requests in 2013, and U.S. Citizenship and Immigration Services received 132,797, but CBP's backlog increased, while its counterpart's backlog decreased, the attorneys said.

They seek class certification and a nationwide injunction requiring a response to backlogged FOIA requests within 60 days of a court order.

They are represented by Stacy Tolchin of Los Angeles.

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