Court rejects ACLU's request for detainee death records

A U.S. District Court in Washington, D.C., has denied the American Civil Liberties Union access to documents held by the Department of Homeland Security regarding deaths of immigration detainees.

The court found for the ACLU regarding Homeland Security's attempt to withhold e-mail and records as exempt internal agency memoranda under exemption 5. The court also held, however, that the government had properly withheld or redacted other records under privacy and law enforcement exemptions.

The ACLU filed a FOIA request in June 2007 requesting documents related to the deaths of immigrants who were in the custody of Immigration and Customs Enforcement dating back to January 2004. The ACLU sought information regarding the department’s recordkeeping procedures, detainees’ background, witness statements, email messages, reports of the deaths and the notes written by one detainee prior to her suicide.

The detainees were a cross-section of immigrants to the U.S. and were being held in a patchwork of public and privately-owned facilities across the nation, said David Shapiro, an ACLU staff attorney.

The department made some disclosures, including some redacted documents, but cited FOIA exemptions in withholding much of the requested information. The ACLU responded with a lawsuit in 2008 “challenging the adequacy of the department’s search for records responsive to its FOIA request and seeking to compel the release of several documents the defendants withheld in full or released only in part.”

In its ruling, the district court found that the department had correctly used exemption 2, regarding internal agency rules and practices, in denying the ACLU’s access to intake, suicide prevention and security post procedures, as well as shift schedules and reports due to the security risks that may be caused by their disclosure.

The court also supported the department’s withholding of witnesses’ handwritten notes and journal entries and the medical records of a deceased detainee, stating that making them public would violate the personal privacy rights (exemption 7(c)) of those involved, documents said.

Also included in the ACLU’s lawsuit were allegations that the department did not expend reasonable efforts in complying with the request because it failed to thoroughly search departmental email — what the ACLU referred to as an “obvious source of important records” — and did not produce medical evaluation records for one detainee even though other records listed him as having been medically evaluated, according to the court.

“We take all FOIA requests very seriously and we work hard to be as transparent as the law will permit,” said Marty Metelko, director of congressional public affairs with the Office of Inspector General for the Department of Homeland Security.

The court agreed with the department, ruling that searching its entire email database and conducting additional searches for records based on the ACLU’s speculations would pose an unreasonable burden.

The ACLU also argued that the department, because it had more information regarding the identities of detainees who died, should not have limited its search only to the 66 individuals initially named by the ACLU.

“Perhaps in the ordinary search it’s reasonable to limit a FOIA request to records in existence at the time of the request, but in this case there were so many responses and so many ongoing searches by the agencies of different file records that if the agency was performing a new search there was no reason to limit that search to deaths that had occurred at the time of the request,” Shapiro said. He added that the ACLU’s request uncovered deaths ICE had lost track of, causing the department to launch an investigation that unearthed 10 more.

However, the court reasoned that requiring an agency to adjust responses based on post-response occurrences “could create an endless cycle of judicially mandated reprocessing,” court documents said.

The ACLU, however, was able to prove that the department had erred in its application of exemption 5, regarding internal agency memoranda.

“The rulings in our favor are actually quite important,” Shapiro said. The government wasn’t able to prove that records containing third-party interviews conducted by the Office of Inspections in connection with a review of detainee deaths and email related to that review were exempt from disclosure because they were part of a decision-making process or subject to attorney-client privilege, he said.

Shapiro also mentioned that most of the information the ACLU was seeking came out after the lawsuit was filed.

“Under the pressure of litigation, the government provided more documents than it initially had just to the response to the request,” he said. “Unfortunately this was a case where litigation was the only avenue to obtain meaningful information, which is not really how FOIA is supposed to work.”