Last September, U.S. Customs and Border Protection agreed to publish past versions of the Department of Homeland Security’s Privacy Impact Assessments on CBP One, the app that allows asylum seekers to schedule inspection appointments, among other functions. CBP agreed to post these documents in the agency’s Freedom of Information Act (FOIA) library. Agencies’ FOIA libraries—or Reading Rooms—are designated webpages where the public can view agency documents without the need to file a request under FOIA.
While CBP’s agreement to publish this document may seem inconsequential, hopefully it is part of a larger trend of agencies publishing records in their respective FOIA libraries more often.
In a different case, the organization Al Otro Lado filed a lawsuit to force Immigration and Customs Enforcement (ICE) to publish the agency’s FOIA logs—lists of all the FOIA requests that have been filed during a specific time period—in ICE’s virtual Reading Room. Prior to Al Otro Lado’s lawsuit, ICE had not published these logs for almost five years. As a result of this litigation, ICE’s FOIA logs are current up to September 2023. The FOIA logs are a useful tool for transparency advocates pushing agencies to make more information publicly available.
The problem, however, is that the agencies only agreed to publish these documents after organizations sued them under the FOIA. The FOIA specifies that agencies “shall” make certain categories of documents available to the public.
In other words, agencies have a duty to publish these records proactively, without the need for anyone to file a federal lawsuit or even a formal FOIA request. The categories of records agencies should make publicly available include:
- Agency opinions issued in making case decisions.
- Agencies’ policies and interpretations not published in the Federal Register.
- Administrative staff manuals and instructions to staff that affect a member of the public.
The law also says that if records have been provided to an individual as a result of a FOIA request, the agency has the duty to put the record on the public reading room if it determines that the information will be requested again or if the same record has been requested three or more times. This latter condition makes the publication obtained by the Al Otro Lado lawsuit extremely important. Advocates now will be able to search these sought-after records and hold ICE accountable to its duty to provide the public with information about the agency’s practices.
The disclosure of documents in FOIA Reading Rooms is not something that is overly burdensome for government agencies with multibillion dollar budgets and tens of thousands of employees. Proactive disclosures are not only beneficial for advocates seeking information but help the processing of FOIA requests as a whole. If information about agencies’ policies is publicly available, there is no need for advocates to request release of that information. The Attorney General noted last year that proactive disclosures are a part of the U.S. Department of Justice’s strategy to strengthen the government’s administration of FOIA.
Of course, proactive disclosures must be monitored so that they are successfully used as a tool to achieve transparency. The agency reading rooms are often difficult to find on agency websites, and particular documents may be hard to find within the reading rooms. If the prior examples are any indication, the agency proactively posts documents on its FOIA reading rooms in response to advocates’ requests rather than by publishing records on their own as is their legal obligation, and at least in these cases, after lawsuits were filed.
Despite the agencies releasing these documents after being sued, the government’s openness to publish information in its reading room is a positive development. It’s important for advocates to be aware of these FOIA provisions and invoke them whenever possible to promote the proactive disclosures of agency records.
FILED UNDER: Customs and Border Protection, FOIA
