FOIA advisers recommend independent review into how DHS handles immigration record requests

Congress should fund an independent review into how the Department of Homeland Security handles immigration records requests, one of the largest drivers of the Freedom of Information Act backlog, according to an advisory group.

The FOIA Advisory Committee approved its final report for the 2020-2022 term on Thursday. The committee is now seeking applications for new members ahead of the first meeting of the 2022-2024 term in September.

The committee’s final report digs into a range of legislative, technology and process recommendations, including suggestions for how to improve “first-person requests,” where individuals seek access to government records on themselves.

The report notes DHS accounts for about half of all FOIA requests received by the federal government, with most involving immigration records scattered across U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection.

Alien Files, or A-Files, are the largest category of first-person FOIA requests, according to the report. The immigration files are crucial to those requesting immigration benefits or seeking to defend themselves in court proceedings.

“This use of FOIA for administrative discovery is a significant driver for the USCIS backlog,” the report states. “As a first-party alternative to the FOIA queue, we recommend that USCIS extract A-files and establish a fast-track processing alternative to FOIA.”

The report recommends a “non-governmental entity with expertise in research and development” assess DHS processes, workforce, and existing technology related to A-files and FOIA requests.

During Thursday’s meeting, the committee voted to amend the final report to recommend that Congress provide supplemental funding to DHS to support the independent assessment.

“We do know that there are a lot of unfunded mandates that we put on our FOIA offices,” Michael Morisy, MuckRock’s chief executive and a member of the advisory committee, said during the meeting. “I think it would help actually make sure that this happens, because otherwise it would be tough to pull off because it will require dedicated funding that is going to be hard to find. I think it would also give Congress a chance to provide oversight if they’re earmarking this funding.”

DHS FOIA backlog

DHS gets the most FOIA requests out of any individual agency, receiving an average of 250,000 requests annually between 2009 and 2019, according to a DHS FOIA backlog reduction plan released in March 2020. The majority of the requests are related to immigration records.

But the agency was able to reduce its FOIA backlog by 25,102 cases last year, a more than 30% reduction, according the 2022 DHS Chief FOIA Officer report.

DHS has targeted its processes around immigration records requests in particular. In FY-21, USCIS reduced its A-file backlog to 58 requests, a 99.6% reduction, according to the report.

USCIS is now able to directly access, process and request ICE documents. An agreement between the two agencies gives ICE 48 hours to review and approve documents before they are returned to USCIS and combined into an A-file to share with a requester.

“This agreement does away with the need to refer documents to ICE and provides greater customer service by reducing processing times and delivering one consolidated response to the requester,” the report states.

DHS moving to new FOIA system

The advisory committee’s recommendations come as DHS shifts to a new FOIA processing system. The agency says the new system will allow it to process records faster and more accurately. The new system will provide FOIA professionals with “advanced e-discovery tools that are common in the private sector,” according to DHS.

The move will start with the Privacy Office at DHS headquarters in late June. The schedule for other DHS components is yet to be decided.

“We are staggering transition to limit the disruption in service,” a DHS statement says. “The length of the transition, and the date when other FOIA processing centers begin the transition, depends on the time it takes to migrate data.”

The DHS Chief FOIA Officer report provides some more detail on the new system, which is contracted out through the DHS Privacy Office.

“The Privacy Office required that the new solution include several key features that will decrease the administrative burden and improve processing,” the report states. “Critically, the solution provides users with access to powerful e-discovery tools that will improve processor’s ability to efficiently review the large volume of electronic records often associated with complex FOIA requests. The solution will also be interoperable with other FOIA tools in use at the department and allow requesters to submit requests online more efficiently. The solution also provides video redaction capabilities, which we expect will be increasingly important as the department increases its use of body worn cameras.”