Hijinks on ICE: Freezing Out TRAC on FOIA Requests

By Dan Cadman on May 29, 2014

More than once in the past, I've blogged about Syracuse University's Transactional Records Access Clearinghouse (TRAC). See, for example, here and here.

It is an entity with which I almost never agree philosophically, but for which I have a measure of respect because of its tenacity in digging for data hidden or denied by this most opaque of presidential administrations; one whose Department of Homeland Security (DHS) and subordinate immigration agencies have done all that they can to either completely withhold statistical information or to disclose it sparingly and only in such fashion as serves their purposes.

For both of those reasons (the administration's obfuscations and TRAC's persistence), then, it was no surprise when TRAC announced earlier this month that it was filing suit against DHS and Immigration and Customs Enforcement (ICE), charging them "with multiple violations of the Freedom of Information Act (FOIA), the Administrative Practices Act and the administrative rules of both agencies."

According to TRAC, the genesis of the lawsuit is a recent ICE decision in a FOIA request filed by TRAC that it is essentially "seeking records to further a commercial trade for profit ... and not acting on behalf of an educational institution operating a program of scholarly research."

Such a finding has major financial consequences to an entity run on a small budget, as many scholarly and research institutions inevitably are, because it permits the agency to deny FOIA fee waivers, and in fact to substantially raise costs assessed for responding to records and data requests. As a practical consequence, this basically ensures that only very determined and deep-pocketed organizations are likely to pursue such requests with the kind of persistence TRAC has shown in the past.

Without being certain, I suspect that in rendering this finding, ICE is hanging its hat on the fact that TRAC itself, in an effort to be self-sustaining, charges modest fees for some of its products. This may be true, but is both qualitatively and quantitatively different than what ICE is now attempting to do in its own levying of fees, by way of masking its true intent: denial of data that has so often been embarrassing when revealed.

Much of what TRAC has so determinedly pursued is data that, in a reasonable universe, would routinely be disseminated by ICE and DHS to the public as an effort to keep us informed. In fact, a great deal of the data now unavailable were, under prior administrations, systematically published in annual immigration statistical digests. Even the most casual comparison of those products between the Obama administration and prior administrations reveals the surprising number of gaps where information is no longer provided.

The only conclusion any reasonable person can reach is that DHS and ICE informational stonewalling has reached a new level.

How ironic, that observers and analysts who are philosophically poles apart must unite in common cause in reminding this administration of its legal obligation to provide accurate and timely information, from which we can form our own opinions, instead of being spoon-fed only the pap they want us to have.

ICE's laughable attempt to categorize TRAC as a "commercial" venture is, I think, destined to failure on both the perceptual and the legal level.

What is more, no good can come of their attempts to withhold or deny information: one way or the other, it will leak into the public domain anyway — doesn't it always? I need only note the most recent publications from the Center for Immigration Studies, detailing the shocking release from custody of tens of thousands of violent alien criminals, as evidence to prove my point.