Approximately two months after the Department of Homeland Security setup a suspicionless internal checkpoint near mile post 146 along State Route 86 in Southern Arizona, I submitted a FOIA or Freedom of Information Act request to U.S. Customs & Border Protection’s Washington, D.C. office. The specific information I’m seeking includes:
- A copy of the Border Patrol’s field manual for operating internal suspicionless checkpoints
- A copy of the Border Patrol study used to justify establishing a checkpoint along SR86 in Southern Arizona near mile marker 146
- A copy of checkpoint summary reports regarding seizures at the checkpoint since its inception in early 2008
- A copy of “Immigration Law”, a DOJ publication related to immigration case law
The Freedom of Information Act is a federal law that, in theory, requires executive branch agencies to provide individuals access to public records under the agency’s control with few exceptions. If the agency fails or refuses to provide access to the requested documentation within a reasonable time frame, the law creates a legal cause of action against the agency.
The reality however is quite different. Executive branch agencies routinely drag their feet for months, if not years, regarding FOIA requests. Sometimes requests are ignored outright. Additionally, there is little recourse in the courts given that judges rarely, if ever, impose sanctions on federal agencies for failing to obey the law. Take for instance this article I wrote for Freedom’s Phoenix several years back regarding a few of my earlier FOIA experiences.
With regards to my most recent FOIA request, it took the agency over 5 1/2 months merely to acknowledge receipt. The August 29th response from Customs & Border Protection stated my request had been received but the documentation requested was still being compiled and would have to be vetted before final release. Additionally, the agency denied me access to one document that originated in the Department of Justice. The Homeland Security agency indicated I needed to contact the DOJ directly and request the document from them.
Legally, an agency is required to respond to a FOIA request within 20 days of receipt. That means Customs & Border Protection is already over 210 days out of compliance with the law. If history is any guide however, Customs & Border Protection will take well over a year to fill this information request if it bothers to fill it at all.
Given that Americans are being routinely seized and searched by armed federal agents absent suspicion at internal checkpoints, it’s not unreasonable to expect DHS to comply with the law and release public information regarding such checkpoints. Unfortunately, transparency and accountability don’t appear to be high priorities for Homeland Security these days:
Security is one thing, but how about this from the Department of Homeland Security? The agency has instructed employees to ignore, in some cases, court orders to disclose information. The agency says that an employee who gets a court order should seek a delay. And if he or she is unsuccessful and the court persists, the employee “shall respectfully decline to comply with the demand.”
– U.S. News & World Report