Thursday, March 12, 2009

Lawsuit alleges feds improperly withheld information regarding border fence

March 11, 2009
Brownsville Herald / The Monitor
by Laura Tillman

The consumer advocacy non-profit Public Citizen filed a lawsuit on behalf of a University of Texas School of Law professor on Wednesday, claiming that the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and the U.S. Army Corps of Engineers withheld documents about the U.S.-Mexico border fence.

Clinical Law Professor Denise Gilman said she made a Freedom of Information Act request in April on behalf of the University of Texas Working Group on Human Rights and the Border Wall.

The lawsuit, filed in federal court Washington, D. C., claims that Gilman requested documents identifying properties that would be affected by fence construction, maps of where the border fence would be located, the agreements sought between property owners and the federal government, and property appraisals, among other documents.

In October, the working group of UT faculty and students told the Inter-American Commission on Human Rights that the location of the border fence inordinately affected minorities and low-income individuals.

"After we prepared our report we continued to push for documents and transparency and came up short," Gilman said. "We were unable to get the things that are necessary to continue with this massive investigation."

Even though the Army Corps of Engineers initially estimated that the documents included in the request would be so voluminous that the working group would have to pay an estimated $54,000 in photocopying charges, the group has received less than two dozen documents.

"There has been an apparent dispute between CBP and the U.S. Army Corps of Engineers as to who has proper custody of the documents," Gilman said. "I don't think it's proper for us to have been denied, but given the time, they could have resolved those disputes."

DHS and the Army Corps of Engineers did not return phone calls requesting comment on the lawsuit.

The lawsuit says that government agencies have 20-working days to respond to FOIA requests. In exceptional cases, the agencies can ask for a 10-working day extension before fulfilling requests. But Public Citizen lawyer Margaret Kwoka says that each of the three agencies inappropriately responded to Gilman's requests in different ways.

CBP waited beyond the 20-working day period to tell Gilman they would need more time, but then did not contact her again, said Kwoka. After contacting CBP on several occasions, Gilman received two documents with redactions on Dec. 18, Kwoka said. She made an appeal for the redacted sections to be released and received no response until Jan. 30, when she was told her request was still being processed.

According to Kwoka, the Army Corps of Engineers responded to Gilman on May 6, asking her to narrow her request. She complied and was told she would receive more information by June 25. At that point, the corps denied Gilman's request in full, said Kwoka, adding that Gilman appealed but received no response. Gilman contacted the agency repeatedly until she was told the Army Corps of Engineers would release some documents in mid-January, said Kwoka. The Army Corps of Engineers did release some documents on Jan. 29. On Feb. 19 the agency released a few additional documents which had redactions, Kwoka said.

DHS simply deferred Gilman's request to CBP and did not provide any documents, according to Kwoka. But the lawsuit claims that DHS still has some of the requested information.

Kwoka says Gilman has exhausted every avenue of the FOIA appeals process before filing a lawsuit, and waited nearly a year after her initial requests for the agencies to comply.

"We're hoping to point out the broken nature of a system in which a requester can wait for a year and the response of agencies is to claim each document is being held by the other," Kwoka said. "Agencies can't shirk their responsibilities by passing the buck. An effort has to be made to comply with deadlines."

Gilman says that the motives behind the delay are unclear.

"What I can say with certainty is that there was a lack of transparency throughout this process," Gilman said. "Whether or not that was the intention, it certainly had the effect of making it easier (for the border fence) to move forward. I hope that under this new administration, which has made it a point to make transparency and access pillars, documents will be released and given consideration before the wall is completed."

Public Citizen works pro bono and takes on "impact litigation," or lawsuits that aim to set legal precedents. Kwoka says fixing the FOIA system would have a positive impact on future requests.

"Information is frequently only as good as its timeliness," Kwoka said. "If you don't get information about a decision making process until after the decision is made, there's no chance for public input. Often it's really just that the agency doesn't have enough resources. Whatever the motive, it's unacceptable."

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