This suit, filed October 4, 2017, sought to compel the Department of Homeland Security (DHS) and the Department of State (DOS) to release certain records under the Freedom of Information Act (FOIA). The plaintiff—a nonprofit organization dedicated to protecting freedom of speech and press—sought "records concerning the exclusion or removal of individuals from the United States based on their speech, beliefs, or associations." The case was filed in the U.S. District Court for the Southern District of New York.
The plaintiff is the Knight First Amendment Institute at Columbia University. It argued that pursuant to President Trump's immigration policies, DHS and DOS created new policies with which to vet visa applicants and refugees. In particular, the Knight Institute pointed to the development of a questionnaire that asked for "any social media platforms and handles used during the last five years," as well as a new policy proposal slated to go into effect October 18, 2017 to have DHS' immigration records "include the 'social media handles, aliases, [and] associated identifiable information,' as well as 'publicly available information obtained from the internet,...and information obtained and disclosed pursuant to information sharing agreements.'" The Knight Institute argued that these changes would have an expansive effect, reaching visa applicants, naturalized U.S. citizens, and lawful permanent residents.
The Knight Institute submitted a FOIA request to DHS and DOS seeking information on these new vetting policies as well as the government's rationale that it can "base immigration decisions on individuals’ speech, beliefs, or associations." ICE released only one document in response to this request, prompting the plaintiff to bring this suit.
The case was assigned to Judge Andrew L. Carter, Jr. on Oct. 5, 2017.
On Dec. 28, 2017, the government filed a letter seeking to dismiss the complaint, arguing that the Knight Institute had failed to exhaust administrative remedies. On Jan. 16, 2018, the parties stipulated their voluntary dismissal as to ICE. The plaintiff filed an amended complaint on Mar. 14, 2018.
Through a series of orders, the court ordered the various components of the government to complete production of responsive records between June and July of 2018. A status report filed on Oct. 5, 2018 indicated that the government had completed much but not all of the production request, and that the parties were continuing to work together to complete it. On November 9, 2018, the plaintiff and the defendant proposed the briefing schedule for partial summary judgment.
Several defendants and the plaintiff separately sought summary judgment in February and March 2019.
On September 13, 2019, the court (Judge Carter) granted in part the defendants' partial motion for summary judgment. The court found that the Office of Legal Counsel satisfied its burden in demonstrating that it conducted an adequate search of the records it possessed. On the same day, the court also granted in part the plaintiff's cross motion for partial summary judgment. The court found that ICE did not conduct an adequate search for documents responsive to the plaintiff’s FOIA request, and ordered ICE to conduct new searches and the parties to file a joint status report within 21 days. 407 F.Supp.3d 311.
On September 23, 2019, the court granted in part the defendants' motion for summary judgment. The court held that ICE improperly invoked FOIA Exemption 5 to withhold certain records, and that such records must be released. For the same reason, the court also granted in part the plaintiff's cross partial motion for summary judgment on the same day. 407 F.Supp.3d 334.
Following such orders, the parties filed a series of several status reports. Status reports filed on October 4 and 11, 2019 stated that the parties reached agreement regarding the offices and components that ICE will search and the search terms that will be used. The status report filed on December 6, 2019 claimed that after reaching agreement with the plaintiff on search terms and scope, DHS completed its document searches.
The joint status report filed on December 20, 2019 stated that the parties are still finalizing details of U.S. Customs and Border Protection's search. The joint status report filed on February 24, 2020 outlined details of U.S. Customs and Border Protection's search. The latest status report, filed on May 14, 2020, further outlined document search agreements among the plaintiff and various government agencies.
As of June 2020, the case is ongoing.
Virginia Weeks - 10/05/2017
Virginia Weeks - 10/09/2018
Bogyung Lim - 06/03/2020
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