Law Firm Sues US Citizen And Immigration Service After It Tries To Claw Back Docs Obtained Legally Thru A FOIA Request

from the how-it-actually-works-v.-how-USCIS-wishes-it-worked dept

Once someone legally obtains documents from a government entity through a public records request, the government simply cannot demand to have them returned just because it screwed up when it fulfilled the request.

That unalterable fact hasn't stopped government agencies from trying (or even [temporarily] succeeding). The NYPD botched its handling of a public records request twice, handing out information it didn't want to disclose to facial recognition researchers on two separate occasions. Both times, it tried to get a court to help it demand the mistakenly released information be returned. One request was granted (then rescinded). The second time the NYPD screwed up it didn't even bother to see if a court would oblige it twice.

US Citizenship and Immigration Services (USCIS) is being sued for trying to do exactly this same thing. It fulfilled FOIA requests pertaining to Hoppock Law Firm clients, sending the firm the "alien files" compiled by the agency. (h/t National Security Counselors)

At the time, the USCIS told Hoppock Law Firm it was aware it was over-fulfilling the request. From Hoppock Law's lawsuit [PDF] against USCIS:

In the Determination Letter, defendant USCIS wrote that it was intentionally releasing portions of the records that would otherwise be considered “exempt” under the FOIA statute after discussion between agency personnel and a member of its staff. It purported to release this exempt material “as a matter of administrative discretion.” And it said that the released records may also include other “discretionary releases of exempt information.”

These statements confirmed that even if portions of the records released were subject to any exemption under the FOIA, such release was intentional, not inadvertent.

Seven months later, USCIS had a new Director of FOIA Operations. And Hoppock Law had a new letter from USCIS demanding the "return" of information the agency had already voluntarily released.

The Demand Letter stated that, as for request number NRC2021092780, the USCIS had now decided that it had “inadvertently released personally identifiable information of third parties and/or law enforcement sensitive information.” It did not identify what pages or portions of the release the defendants were now claiming to be exempt or address its previous statements that it was releasing exempt information on purpose, as a matter of administrative discretion.

The Demand Letter did not identify any specific statutory exemption under the FOIA statute that the Defendants believed should apply to these records.

Although the request was for Plaintiffs’ client’s own A-file and the records released included only those found in the client’s A-file, the Demand Letter said that “improper use” of the records Plaintiffs received could “harm” the individuals “whose information was mistakenly sent.”

The demand letter [PDF] also hinted the law firm could be subject to criminal charges if it did not immediately comply. The letter claimed that any "any use or disclosure" of information (information not specified in the letter) might "impede or interfere with law enforcement activities." That's called obstruction when the feds are bringing charges. And like any federal charge, it's serious and can result in lengthy sentences.

The letter went on to demand compliance by January 18, 2022, which would be the same day the law firm received the letter. On January 19, the law firm responded, asking USCIS to identify which FOIA request this demand letter covered and noted that it needed other information from the agency if it was even going to begin complying with its demands, including identification of every person and entity the documents might have been shared with.

Despite the implicit threat of criminal charges and the demand for immediate action, the law firm's questions have yet to be answered. To prevent it from being accused of federal crimes or improper dissemination of sensitive information, the law firm is suing USCIS, seeking an order that would strictly define what the law firm is obligated to do in response to this letter, especially given its implication of criminal charges.

And it points out USCIS has no legal right to demand the things it's demanding.

The FOIA statute includes no authority for the responding agency to demand that a requester return records it has disclosed under the FOIA or to furnish information to the agency about who has been provided access to those records.

Even if there were some implied claw-back power in the FOIA statute, it would not apply to records the agency has intentionally disclosed, as it said explicitly here in the June 2021 disposition letter.

Because of that, the law firm is also seeking declaratory judgment stating that the demand letter violates FOIA law and that the law firm is under no obligation to comply with an extremely belated letter that, in effect, orders the firm to disclose the names of others who've viewed the documents and any attorney-client privileged communications compliance with the letter might reveal.

The law firm should prevail. FOIA law simply does not work this way. And USCIS's earlier statements that it knew it was providing information normally considered exempt from disclosure shows the agency was fully aware of what it was handing over to the law firm. A change at the top of the FOIA org chart doesn't suddenly make all of the agency's past public records actions null and void. And it sure as shit doesn't change how this law works.

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Filed Under: foia, transparency, uscis
Companies: hoppock law firm


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  • icon
    That One Guy (profile), 14 Feb 2022 @ 3:57am

    'How dare you keep what we gave you?!'

    Hopefully the judge(s) will get what should be a simple open and shut case correctly because if they somehow get this one wrong they'll be punching a massive loophole into an already terribly applied law, as all an agency will need to do to really screw with a requester is 'accidentally' include more data than requested and then threaten charges if everything isn't returned, such that even a 'successful' FOIA request will pose a threat to the recipient of the documents.

    link to this | view in chronology ]

  • icon
    Bluegrass Geek (profile), 14 Feb 2022 @ 8:13am

    Well, I mean it's not the Freedom Of Information Until We Change Our Minds Act.

    link to this | view in chronology ]

  • icon
    davetechdirt02 (profile), 14 Feb 2022 @ 8:23am

    The solution is obvious.

    1. Receive documents.
    2. Send copies to many people.
    3. Have a nice day.

    link to this | view in chronology ]

    • icon
      R.H. (profile), 14 Feb 2022 @ 11:12pm

      Re:

      That might not be the best solution in this particular case since the requested data is a client's alien file which presumably has their own personally-identifying information in it.

      For most requests though, I'm on board with a public clearinghouse website that archives every bit of (de-personalized) data that has been received by anyone via a FOIA request. In fact, adding something like this to FOIA itself sounds like so much government transparency that it'll never happen.

      link to this | view in chronology ]

      • icon
        Bergman (profile), 15 Feb 2022 @ 8:48pm

        Re: Re:

        If it’s accessible under FOIA it’s not confidential. It can’t be. Otherwise you could make FOIA requests for other people’s SSNs, login passwords, etc.

        link to this | view in chronology ]

  • icon
    Nathan F (profile), 14 Feb 2022 @ 9:25am

    This almost sounds like the old FIOA boss knew they were on their way out and sent along the extra documents as a way to tweak the nose of whoever took their place. Or maybe knew that the extra info could turn whatever case the law firm was working on in their favor.

    link to this | view in chronology ]

  • identicon
    Jordan, 14 Feb 2022 @ 12:15pm

    What does return documents mean, legally?

    Since documents are electronic, one cannot return it. The people who provided it still have it. Assuming these documents have been read, analyzed, and the knowledge used, legally, what does a return mean?

    What if they printed them out and send them back with a "here ya go" note?

    link to this | view in chronology ]

    • icon
      R.H. (profile), 14 Feb 2022 @ 11:14pm

      Re: What does return documents mean, legally?

      Normally a "return" request for electronic documents simply means, destroy any copies you have or that you've disseminated. If that's not possible, explain why.

      link to this | view in chronology ]

  • identicon
    Annonymouse, 14 Feb 2022 @ 1:01pm

    It's too bad that the donkey buttocks that is the new head will only be subjected to a suggestion to do better instead of a paddling or pilloried in the town square for a week.

    link to this | view in chronology ]

  • identicon
    Bobvious, 14 Feb 2022 @ 1:26pm

    Was the intentional release

    a honeypot, designed to find out who (beyond the law firm) WOULD be interested in the content of the documents?

    link to this | view in chronology ]

  • identicon
    TheDumberHalf, 14 Feb 2022 @ 2:02pm

    Sorry not sorry

    You can have your documents back, but I sent copies to everyone. Good luck

    link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 14 Feb 2022 @ 8:52pm

    "The law firm should prevail. FOIA law simply does not work this way."

    Have you met our courts?

    link to this | view in chronology ]


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