Foreign Officials, Detention, Privacy, and the Freedom of Information Act
Q: A former Philippine official, who is wanted in the Philippines for corruption charges, is detained at an immigration holding center in California — reportedly for violation of immigration law. (It was reported that the official’s visa was revoked by the State Department.) The Immigration and Customs Enforcement and the State Department have refused to talk about his case citing the Federal Privacy Act. But many Filipinos and Filipino Americans are worried that there might be a cover-up and complicity to help the official evade the Philippine justice system.
The question is: what can be done to have concerned government agencies release information about the official, why the visa was revoked, and why the official continues to be detained at a Detention Center, and why the official has not been deported yet? Can the Freedom of Information Act be invoked to get the government to release the info?
A: The federal Freedom of Information Act is the mechanism for obtaining public records from the federal government (not including Congress or the courts). See http://foia.state.gov/foia.asp for text of FOIA.
Although many public records are available from federal agencies under FOIA, the Act contains exemptions providing that some categories of records are not subject to disclosure under the Act, including the following:
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) geological and geophysical information and data, including maps, concerning wells.
It is possible that one or more of these exemptions would apply to the records requested regarding the official.
If no official FOIA request has been submitted (requests must be submitted in writing), it might be worth submitting one. The web site at http://www.uscis.gov/graphics/aboutus/index.htm may be useful for seeking records related to INS adjudications. You may also find the State Department’s FOIA resources at http://foia.state.gov/AboutFOIA.asp useful.
If the FOIA request is dismissed, agencies typically allow for an administrative appeal (usually a letter to the head of the agency). If the administrative appeal is unsuccessful, appeal to the courts is a final possibility.