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Plaintiffs in a Freedom of Information Act lawsuit contend the Homeland Security Department is attempting to hide information on a controversial immigrant fingerprinting program by refusing to release court-ordered email trails.
Under the program, called Secure Communities, officials check the digital fingerprints of people booked by local law enforcement against DHS databases and then deport the most dangerous aliens, such as convicted murderers. Critics of the program say it enlists states in carrying out federal laws and targets too many innocent people, deporting those whose charges are minor or were ultimately dismissed. DHS officials say their decisions to detain or remove an immigrant are based on the severity of the offense and the individual's criminal history.
During the past year, DHS' Immigration and Customs Enforcement released thousands of electronic files in response to a FOIA request for emails, statistical information and policies related to "opting-out" of Secure Communities. At issue is whether DHS has been deceiving the public on the mandatory nature of the program, and whether compliance with the court ruling is technically workable.
Now the agency is trying to block a ruling that requires ICE to hand over the electronic files' labeling data, formatting information and trail of recipients. Plaintiffs in the case -- the Center for Constitutional Rights, the National Day Laborer Organizing Network and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law - argue that the move to strip such "metadata" is part of an effort to hide records disclosing uncertainty over whether the federal government has the power to force jurisdictions to share fingerprints with federal immigration officers.
Homeland Security officials this week said the department's policy is that the exchanging of fingerprints is mandatory -- local law enforcement officials, as part of the regular booking process, enter fingerprints into a FBI database that, by law, are automatically submitted to federal immigration authorities and checked against DHS databases. Localities, however, have the option of not being informed about the outcome of the checks, they explained.
The plaintiffs argue emails and metadata detailing their senders, recipients and carbon-copy addressees will show that DHS officials have had doubts about the legality of the fingerprint transmissions.
DHS officials this week acknowledged that previous public statements on opting-out of Secure Communities were unclear and possibly created confusion, but repeated that the program is mandatory.
In February, U.S. District Judge Shira Scheindlin ordered the government, going forward, to include certain metadata when it releases the rest of the potentially 1 million requested records. The elements must include, among other fields, the original name of the file when it was saved, as well as the date and time it was last modified. Emails must be accompanied by labels showing each message's addressee, sender, time stamp and people blind-copied on the message.
The civil liberties groups say it is particularly important to have access to the names of officials blind-carbon-copied on emails. Sunita Patel, a staff attorney with the plaintiff Center for Constitutional Rights, pointed to one document that contained guidelines on how to make the program mandatory. "We were provided several copies of different draft forms of a memo," she said. "There's no way for us to determine the trajectory of the policy memoranda. We have no idea what's first and what's last."
Immigration enforcement is at a critical juncture. President Obama in a major speech last week highlighted his administration's crackdown on illegal aliens to convince Republicans the nation is ready for comprehensive immigration reform. Secure Communities was responsible for removing nearly a third of all criminal aliens deported so far this year, officials have noted.
"They don't want to release information that is going to cause embarrassment right now," Patel said. "What we have is just a bunch of PDF dumps."
Some of the already-released records have caused trouble for the program, she noted. Rep. Zoe Lofgren, D-Calif., called for the DHS inspector general and the assistant director at the ICE Office of Professional Responsibility to probe Secure Communities after examining the emails. "Having conducted with my legal staff an initial review of the documents that have been made public, I believe that some of these false and misleading statements may have been made intentionally, while others were made recklessly, knowing that the statements were ambiguous and likely to create confusion," Lofgren wrote in an April 28 letter to the two officials.
Federal officials this week declined to comment on the ongoing litigation. But in recent court documents, ICE officials said they do not have the technical capability to comply with the metadata requirements.
The agency struggled just to meet a three-week deadline for producing the full documents, according to the filings. To retrieve the relevant records, the agency endured "an enormous expenditure of manpower and financial resources," with costs totaling more than $270,000 and with officials forced to circumvent security protocols to get the search software to work properly, Catrina Pavlik-Keenan, director of the ICE FOIA office, wrote in a Feb. 20 declaration. The federal government is in the midst of appealing the judge's ruling on metadata.
Part of the problem is that the FOIA office's technology cannot generate the voluminous court-ordered documents in a timely manner. Hence officers have had to borrow an application from the ICE Office of the Principal Legal Advisor that is designed for civil litigation document retrieval. That application does not have enough storage space to process the more than 1 million records potentially covered by the plaintiffs' request, Pavlik-Keenan said. "If ICE FOIA were required to purchase sufficient storage capacity to accommodate all FOIA requests, such a procurement would cost hundreds of thousands, if not millions of dollars," she wrote.
In addition, ICE has no experience releasing metadata in response to a FOIA request. Officials said it is impossible for the agency to fully comply with the court's order without releasing employees' personal information, confidential law enforcement information and other sensitive information that is exempt from FOIA.
ICE officials estimated it would have taken from 150 to 175 hours to manually redact metadata fields, such as "To" or "Cc," in the most recent batch of 500 documents. Staff then would have to apply the same technique for the remainder of the possibly 1 million records -- consuming up to 350,000 hours.
The borrowed application doesn't allow personnel to review or redact the data, Ryan Law, deputy director of the FOIA Office, explained in a separate March 23 filing.
"In order to produce the requested metadata fields, ICE would be required to (1) export the metadata for each responsive document into metadata files, (2) convert the native metadata files into PDF image files or import those native files into the [tool], (3) conduct a line-by-line review of each metadata file, (4) redact information contained within those files that is otherwise exempt from mandatory disclosure under the FOIA, and (5) produce several thousand pages of records containing the nonexempt metadata in PDF image format," he wrote.
Still, that approach would not generate a usable file containing all the fields specified by the judge.
Separately, DHS officials said in a statement this week that the uncertainty surrounding the obligatory nature of Secure Communities stems from past mischaracterizations of the ability to opt-out of receiving the results of the fingerprint-sharing as the ability to "opt-out" of the entire program.
"Under this administration," the DHS statement said, "ICE has prioritized the removal of aliens who pose a danger to national security or public safety, with a particular focus on convicted criminals, as well as the removal of recent border violators, illegal reentrants, and fugitives because these priorities best protect public safety in the United States."