On his first day in the White House six years ago, President Obama promised that his administration would “usher in a new era of open government,” making it easier than ever to obtain information from federal agencies.
That is not how it has turned out at U.S. Customs and Border Protection (CBP).
The agency was woefully unprepared when a flood of immigrants began requesting their records as Obama signaled his intent to loosen the nation’s immigration policies. As a necessary first step in the process of applying for residency, immigrants often must request their own immigration files and enforcement records from CBP and other agencies.
The delays mounted quickly and often stretched to a year or more. Bureaucratic bungling made matters worse.
In 2012, CBP “improperly” closed out 11,000 requests and then had to scramble to review them anew, an audit by the Government Accountability Office found. Then 12,000 request letters were discovered by new managers in the agency’s Freedom of Information Act office, packed away in boxes and apparently forgotten.
“Backlog is increasing at an alarming rate,” one official said in an internal May 2012 memo about CBP obtained by The Washington Post. “[T]he department obviously does not square with the administration’s guidance and risks great scrutiny and criticism from Congress, citizens, watchdog groups.”
Starting in 2013, CBP officials called on 22 student interns each year to reduce the backlogs by helping with research requests and generating automated response letters — despite their lack of experience in dealing with the legal and technical nuances, internal CBP records show.
Now a group of immigrants and their lawyers are suing the agency, saying it has routinely failed to respond to records requests within 20 business days, as required by the federal Freedom of Information Act. The law was passed in the 1960s to guarantee everyone — including immigrants, business owners, investors and the news media — timely access to government information.
In legal papers filed in federal district court in San Francisco, 11 noncitizens and three lawyers said they have waited as much as two years for their records. The group wants the court to apply its ruling to thousands of other unnamed immigrants whose FOIA applications also are stalled.
“Individuals and attorneys desperately need responses to these FOIA requests,” said Trina Realmuto, litigation director at the National Immigration Project of the National Lawyers Guild. “They are essential to determining whether a person is eligible to remain in the country with family.”
The case casts a harsh light on the promises Obama made on Jan. 21, 2009, when he issued two memos to federal agencies designed to improve transparency and the use of FOIA. He called FOIA “the most prominent expression of a profound national commitment to ensuring an open government.”
Advocates of good government say the delays at CBP reflect broader problems and underscore the administration’s failure to achieve its lofty goals.
A new analysis by a nonprofit watchdog group found that few of the 15 federal agencies that receive most of the FOIA requests had good policies and gave adequate and timely responses. The report released Tuesday by the Center for Effective Government said the Department of Homeland Security, which encompasses CBP, was among three government entities that received a D-plus. The State Department and Health and Human Services received F’s.
In the year before Obama took office, CBP took 23 days on average to fulfill a “simple” request. By 2013, it took 142 days. The agency’s backlog of overdue requests — defined as taking longer than 20 working days for a response — has grown from 88 in 2009 to 32,000 today.
“The president set such high expectations that when you see situations like this, it’s jarring to see how far the reality is from the rhetoric,” said David Sobel, senior counsel at the Electronic Frontier Foundation and one of the leading FOIA specialists in Washington.
Obama spokeswoman Brandi Hoffine said the administration has an “unparalleled commitment to reforming Washington” and has taken steps to release records that other administrations have not, such as White House visitor records and climate data.
“While there is always more work to be done, our record demonstrates this Administration’s commitment to transparency is second to none,” Hoffine said in a statement.
The San Francisco lawsuit claims that the number of records released dipped as CBP’s backlog grew, compounding the delays. “DHS reported a dramatic decrease in the number of requests that CBP processed each year: from 27,818 requests processed in FY 2011 down to only 14,635 requests processed in FY 2013,” the lawsuit said.
Officials at CBP and DHS said in interviews that a surge in requests by immigrants, poor management and a lack of resources contributed to the problem. The number of requests at CBP grew from 13,943 in 2008 to 41,381 in 2013.
The 11,000 files were closed in error when requesters failed to respond to an automated letter, mailed after four months, asking whether they were still interested. Officials said that a tactic aimed at reducing the backlog backfired.
The officials said they have taken steps to address the problems, including moving the FOIA operations into the commissioner’s office to give it more stature. They sent out notices to FOIA officials cautioning against the over-
reliance on the controversial “still interested” letters. The agency also launched a Web site that gives “nonimmigrant aliens” access to details about their travels to the United States.
CBP’s FOIA office also has hired 20 additional people, bringing total staffing to 33.
Under FOIA, agencies are supposed to presume the records are releasable — apart from exemptions aimed at protecting national security, internal deliberations, proprietary business information and privacy.
The system has never worked as well as Congress envisioned. Agencies often have not devoted enough resources to responding to FOIA requests and have sometimes resisted disclosing embarrassing secrets, advocates and former officials said.
Since 2009, Homeland Security and its agencies alone have been sued more than 200 times by individuals and organizations seeking access to records, according to data maintained by The FOIA Project at the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
CBP and Homeland Security are “among the worst violators of the Freedom of Information Act that we have encountered in more than 25 years of direct experience,” said Susan Long, TRAC’s co-director.
Democrats and Republicans in Congress both have called for a stronger FOIA process. Sen. Patrick J. Leahy (D-Vt.) and Sen. John Cornyn (R-Tex.) recently introduced legislation that would require agencies to operate under a “presumption of openness” and minimize the use of exemptions.
Stacy Tolchin, the lead counsel in the San Francisco litigation, said the immigrants and their lawyers sued “out of sheer frustration.”
Noe Zaragoza-Quiroz of Nashville; Juan de Dois Cruz Rojas of Picabo, Idaho; Cristina Lucero Romero of Carthage, N.C.; and eight others named in the suit say their lives remain on hold because of their inability to get necessary paperwork.
Immigrants need to document their exact arrival date in the country and other interactions with federal authorities when seeking permanent residency or citizenship.
Zaragoza-Quiroz is married to a U.S. citizen and has two children who are U.S. citizens. He sought to become a permanent resident last year but could not remember the exact date he entered the country in the 1990s without permission, a required detail for the residency application. He also needed information on an earlier incident when border agents had intercepted him and sent him back to Mexico.
With his residency status uncertain, he cannot get a driver’s license.
“I need to get a better job to support my wife and daughters,” he said in a statement provided by his lawyer, Rose Hernandez.
In February 2014, his lawyer filed a FOIA request to CBP, but he has not yet received a response. In December, his lawyer requested a waiver from the government that would enable him to gain residency without providing the required detail.
But his request was denied.
“With the application went all the hopes and dreams of this family,” Hernandez said.