On September 12, 2017, the Sierra Club sued the U.S. Department of Homeland Security (DHS) and its component, U.S. Customs and Border Protection (CBP), under the Freedom of Information Act (FOIA). The case was filed in the U.S. District Court for the Northern District of California.
In its complaint, the plaintiff described itself as "the nation's oldest grassroots environmental organization, [which] . . . has long advocated to protect and preserve the cultures of the borderland communities, as well as the region's land, wildlife, and environment." The plaintiff stated that it feared potential environmental damage that could result from President Trump's Executive Order (EO)
No. 13767, authorizing expansion or replacement of portions of the U.S.-Mexico border wall.
The complaint alleged that the plaintiff had submitted several unfulfilled FOIA requests to defendant agencies, seeking information about the environmental impacts of border wall proposals. First, in 2013, the plaintiff had asked for records since 2010 about border wall construction in a wildlife refuge and flood plains in parts of Texas. Although DHS released a few highly-redacted documents and promised to follow with more information, as of 2017 DHS had not yet completed its search for responsive records and had made no further determination. Next, on March 17, 2017, the plaintiff requested records since 2006 relating to a government consultant's work on the border wall, but the plaintiff had received no further communication from DHS.
Finally, on May 4, 2017, the plaintiff requested records related to the EO, specifically:
1. All records related to the border wall referred to in the Presidential Administration's FY 2017 supplemental appropriations request;
2. All maps and related documents identifying all locations considered or planned for border fencing/tactical infrastructure described in the FY 2017 appropriations legislation;
3. All bids by vendors related to border wall proposals and submitted to DHS and/or CBP;
4. All communications related to border wall proposals between DHS and/or CBP;
5. All communications between DHS and CBP related to border wall proposals, including, but not limited to: funding, timetables, and vendor
selection;
6. All existing and/or proposed timetables for the execution and construction of border wall proposals;
7. All communications between DHS and/or CBP with the White House
that relate to border wall proposals;
8. All communication between DHS and/or CBP and any other federal agencies that relate to the border wall proposals.
DHS then responded to the plaintiff on August 29, 2017, asking it to narrow the scope of its request, and asserting that this request did not constitute a denial.
The complaint alleged that, in all three of the requests above, DHS violated FOIA by failing to issue a determination within the statutory 20-day deadline and by failing to conduct an adequate records search. Further, regarding the 2013 request, the plaintiff alleged that DHS had violated FOIA by wrongfully withholding non-exempt records. The plaintiff sought a disclosure order under FOIA and attorneys' fees.
This case was assigned to Magistrate Judge Kandis A. Westmore on September 12. A case management statement was filed on December 5, an ADR conference was held on December 7, and a case management conference on December 12. Plaintiff also filed an amended complaint on December 12.
The case was referred to Magistrate Judge Maria-Elena James for settlement, but the parties on March 26 agreed to a new production schedule. The defendants were set to produce 1000 pages monthly for six months, followed by 750 monthly until completion. On September 6, 2018, the case was referred to Magistrate Judge Thomas S. Hixson for settlement.
The parties engaged in settlement negotiations for several months. Then, on February 1, 2019, the plaintiff requested that the court set a case management schedule to establish a production schedule for documents that the defendants had yet to produce and a briefing schedule to address the defendants' withholdings or redactions. The plaintiff stated that the defendants had not produced any documents since November 18, and the documents that had been produced were heavily redacted.
On April 18, 2019, the parties filed a joint stipulation requesting that the scheduled settlement conference be continued until June. The parties explained that they had informally agreed to a new production schedule whereby the defendants would increase their production from the previously-agreed 750-1,000 pages per month to 1,200 pages per month. The defendants also agreed to re-evaluate certain redactions that they had claimed under FOIA exemptions and conduct new searches for documents responsive to the plaintiff's FOIA requests.
The parties requested an additional continuance in June 2019.
In October 2019 the parties requested a continuance until April 2020. In their update to the court, the parties stated that the defendants had completed productions for the 2013 and 2017 FOIA requests and had begun productions on the 2016 request. The plaintiff again stated that it believed the productions had been heavily redacted and that the parties continued to disagree about the scope and nature of the redactions; however, the parties wished to continue working together informally toward a resolution.
The documents released by the government are available
here.
This case is ongoing.
Ava Morgenstern - 04/07/2018
Virginia Weeks - 09/21/2018
Sam Kulhanek - 04/19/2020
compress summary
