Project South v. United States Immigration and Customs Enforcement

Background

This Freedom of Information Act case concerns requests for records about the allegedly accelerated deportation of Cameroonian nationals in late 2020 and early 2021. Project South and the other plaintiffs submitted requests to six federal agencies in April and June 2021 and asked for expedited processing. When the action was filed on October 13, 2021, the plaintiffs reported receiving one set of spreadsheets and one partially redacted page.

The court had previously set October 25, 2022 as the deadline for summary-judgment motions, if necessary, and required status updates about the agencies’ searches, processing, and production. In a June 27, 2022 status update, ICE said its searches were largely complete but reported slow production. ICE had processed 1,133 pages, produced 621 pages in whole or in part, and estimated that approximately 3,300 pages remained. At its then-current pace, ICE estimated that completing the remaining work could take another year. The plaintiffs asked for production of at least 1,100 pages in each of July, August, and September.

State reported that some searches remained outstanding after it developed and applied modified search terms. It had processed 450 pages and partially produced five responsive records. State did not predict how many additional pages it would locate or how quickly it could process and produce them. The plaintiffs asked the court to require State to process and produce all required records monthly through September 2022.

Legal standard

The court assumed without deciding that expedited processing was warranted. Under the Freedom of Information Act, an agency receiving an expedited request must process it as soon as practicable. The agency bears the burden of showing that the schedule requested by the plaintiff is truly not practicable. The court also stated that it has broad discretion to set a reasonable processing rate for a Freedom of Information Act request.

Ruling

The court concluded that ICE’s and State’s processing and production appeared to be unusually slow. It therefore ordered, on a going-forward basis:

- ICE must process at least 500 pages per month and produce the responsive pages by the last business day of each month. - State must process at least 400 pages per month and produce the responsive pages by the last business day of each month. - The deadline for the next joint status letter was extended to September 9, 2022.

The next status letter had to report each agency’s progress, address whether and when the defendants should produce a Vaughn index—a document identifying withheld or redacted records and the asserted legal basis for the withholding—and propose a revised summary-judgment schedule if necessary. The opinion does not decide whether the requested records must ultimately be disclosed or whether any withholding or redaction is lawful.