Q: I’m an investigative reporter trying to obtain information from the Department of Homeland Security and Customs and Border Protection regarding the 32 miles of the northern border that are considered secure; about the number of drugs, guns and weapons crossing over the border; staffing levels compared to the southern border. They say some information can’t be provided because it’s “law enforcement sensitive.” Is that a valid excuse? If not, how do I request the information I need?
A: For starters, if you have not already done so, you may want to submit your requests, in writing, to the appropriate agencies, pursuant to the Freedom of Information Act. Submitting your requests in writing should result in a written response, which will make it easier to respond to each agency’s purported reasons for withholding the information you seek.
An agency is required to determine within 20 days (excluding Saturdays, Sundays, and legal public holidays) after the receipt of a request whether to comply with the request. 5 U.S.C. § 552(a)(6)(A)(i).
The actual disclosure of documents is required to follow promptly thereafter. The FOIA permits an agency to extend the time limits up to 10 days in “unusual circumstances” (i.e., the need to collect records from remote locations, review large numbers of records, and consult with other agencies). 5 U.S.C. § 552(a)(6)(B)(i).
The agency is supposed to notify the requester whenever an extension is invoked, although in practice this is not always done. Moreover, the FOIA provides a mechanism to deal with unusually burdensome requests which an agency would not be able to process within the prescribed time limits.
For such requests, the FOIA requires that an agency inform the requester that the request cannot be processed within the time limits and provide an opportunity for the requester to limit the scope of the request so that it may be processed within time frame, or negotiate a deadline for processing the request. 5 U.S.C. § 552(a)(6)(B)(ii). Again, these statutory time frames are not always met.
U.S. Customs and Border Patrol provides a guide to requesting information from the agency under FOIA, available here: http://www.dhs.gov/xfoia/editorial_0579.shtm
That said, it sounds like you already have a sense of how each of these agencies might respond to your written request. The FOIA exempts certain law enforcement records from disclosure, as follows:
[R]ecords 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 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;
Depending on the substance of the specific information that you seek, it is possible that one of these exemptions apply. It does not seem that any of the exemptions listed above would encompass information pertaining to the quantities of drugs and guns that cross the border. However, specific information related to law enforcement efforts may be exempt, since these might “disclose techniques and procedures for law enforcement investigations or prosecutions.” At any rate, ideally, the agency should explain how each piece of information sought fits within this exemption.
For more information related to the FOIA, here are some resources that you might find useful:
Reporters Committee for Freedom of the Press: http://www.rcfp.org/foia/
National Freedom of Information Coalition: http://www.nfoic.org/states
The FOIA Project (Transactional Records Action Clearinghouse): http://foiaproject.org
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.