In 1941, members of the Attorney General’s Committee on Administrative Procedure agreed unanimously that “an important and far-reaching defect of administrative law has been the simple lack of public information concerning its substance and procedure.” The Freedom of Information Act (FOIA) uniquely addresses this concern by providing members of the general public an opportunity to consider and respond to administrative action by viewing actual agency records. FOIA affords broad access to “any person,” and it has become a key tool for both organizations and individuals who not only wish to learn more about the inner workings of the U.S. government, but also seek to participate fully in the democratic process.
For instance, a FOIA request was the primary tool for interested individuals to learn about the Department of Homeland Security’s (DHS’s) Secure Communities initiative, including why it was created and how it was being implemented. DHS designed Secure Communities to enhance and expand current strategies for identifying removable immigrants in the United States who have violated a criminal law. Under Secure Communities, police check a suspect’s fingerprints during an arrest against not only the Federal Bureau of Investigation’s (FBI’s) fingerprint database, but also against DHS’s newly established immigrant biometric database. If the search reveals that the individual is an immigrant who is subject to administrative removal, the database then automatically delivers information on the individual’s immigration history to local law enforcement officials so that they may comply with a DHS detainer and transfer that person into the custody of DHS’s Immigration and Customs Enforcement (ICE). As of September 2012, Secure Communities is active in 97% of jurisdictions in the United States and is slated to be implemented in all jurisdictions by 2013.
Despite Secure Communities’ broad effect, DHS developed and implemented it independent of an explicit statutory mandate and without using rulemaking procedures under the Administrative Procedure Act (APA). In fact, Congress rejected two pieces of legislation that would have provided DHS with a specific statutory mandate to implement programs that were similar to Secure Communities. Rather, DHS created Secure Communities in response to Homeland Security Presidential Directive-24 and congressional priorities for criminal alien removal defined in the Fiscal Year 2008 Budget Appropriations Act. DHS has cited its power to implement this program as general provisions of the Immigration and Nationality Act (INA) that pertain to the identification and removal of criminal aliens.
Especially in the early stages of the program’s implementation, DHS made little information publicly available about Secure Communities. As a result, Congress, advocates, the public, and state officials had significant questions concerning how the technology worked, the burden that it would place on local law enforcement and, most notably, whether a state’s participation was voluntary. In response, the National Day Laborer Organizing Network (NDLON), in conjunction with the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, filed a FOIA request to gain access to DHS’s records on the program. After months of litigation, DHS released the materials pursuant to a series of court orders and NDLON published the records online, making them available to the public. The release of these FOIA documents equipped stakeholders with facts that enabled them to understand, meaningfully evaluate, and provide informed feedback on Secure Communities for the first time.
This Article examines the role of FOIA in Secure Communities. Part I provides background information on the Freedom of Information Act, the role of local enforcement agencies (LEAs) in enforcing immigration law, and the basic structure of Secure Communities. Part II analyzes how FOIA requests facilitated the release of documents and expanded public understanding of Secure Communities, and observes that the agency’s reliance on FOIA as the primary method for disseminating information to the public hampered public participation in shaping Secure Communities, undermined public confidence in the agency, and caused untold monetary and other costs. Part III recommends that agencies prioritize proactive disclosures of FOIA records to facilitate public access and review of agency policy prior to implementation to avoid the lack of transparency that characterized Secure Communities.