SAN FRANCISCO (CN) – Federal agencies must start producing records on President Donald Trump’s travel ban to avoid a court order that would require a speedier release of documents, a federal judge said Thursday.
“Can I get a representation that all the agencies can do a rolling production,” U.S. Magistrate Judge Jacqueline Scott Corley asked during a hearing Thursday. “If not, I will order it.”
Corley is presiding over a lawsuit filed by journalist Cora Currier of The Intercept, who lodged multiple requests for records from the U.S. Departments of State, Justice, and Homeland Security on their “analysis and implementation” of two executive orders to bar entry into the United States by non-citizens from certain majority-Muslim countries.
Currier says obtaining those records promptly is vital because they could offer new facts relevant to arguments the Supreme Court will hear in October, when it weighs the constitutionality of Trump’s partially enjoined travel ban.
“It’s possible some of the documents we obtain might show the way officials were thinking about or talking about the ban, their intent on carrying it out, and if they were focused on Muslims,” Currier said in a phone interview Tuesday.
Two appeals courts blocked enforcement of Trump’s second executive order, issued on March 6, finding in separate rulings that the ban was motivated by religious discrimination and that the president exceeded his authority. The Supreme Court in June allowed parts of the travel ban to take effect but forbade restricting close relatives of U.S. citizens and those with a “bona fide” relationship to the United States.
Currier’s case is one of 24 lawsuits claiming federal agencies failed to release records related to the travel ban in violation of government transparency laws.
The ACLU filed 13 of those lawsuits, seeking travel ban-related records from regional Customs and Border Protection offices across the nation. ACLU attorney Linda Lye said the government has produced about 240 documents so far, which are “largely unresponsive” to the requests because they come from headquarters, rather than local offices.
“The government unfortunately has used the fact that other ACLU affiliates filed FOIA actions to justify delaying or staggering its processing of documents,” Lye said in an email Wednesday.
On Thursday, Corley denied Currier’s motion for a preliminary injunction to force the government to release the requested by records by Sept. 5, but she vowed to supervise the case to ensure documents are turned over “as soon as practicable.”
Justice Department attorney Kari D’Ottavio said all federal agencies have committed to releasing at least some of the records by early to mid-September, except for the Justice Department’s Office of Legal Counsel. That office found 26,000 potentially responsive but “likely exempt” records that require review.
The FBI agreed to produce some records by Thursday “if the request didn’t require any inter-agency consultation,” D’Ottavio said, but no FBI records had been released as of Thursday morning. An FBI representative did not immediately respond to an inquiry about the status of the requested files.
In July, Customs and Border Protection released about 56 pages of documents in response to Currier’s requests. Currier published a story earlier this month about emails trickling in from the agency after the first travel ban was issued on Jan. 27. The emails show “how ill-prepared the agency was, crafting guidance on the fly and frantically adjusting its response as thousands of protesters descended on airports around the country,” according to Currier’s Aug. 8 article.
Currier says making these records public is important not only because they shed light on a “defining moment of the first days of [Trump’s] presidency,” but also because they could contradict the administration’s reasoning for enacting the ban, as was the case with a Department of Homeland Security document leaked in February.
The draft report, titled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States” found more than half of the 82 people who committed terrorist acts since 2011 were born in the United States and that foreign-born terrorists were from 26 different nations “with no one country representing more than 13.5 percent of the foreign-born total.” The document appears to undercut the president’s rationale for banning people from certain countries because they might pose a greater national security risk.
For an administration that ordered the deletion of White House visitor log data, banned cameras from press briefings and has threatened to cut off access to unfriendly press, Currier says FOIA provides a powerful tool to help hold the Trump administration accountable to the public.
“Given that this administration has so far not a great record on transparency in terms of providing public information, it’s extra important that we keep FOIA strong and get as much information as possible through that means,” she said.