By Tim Cushing | Techdirt | May 12, 2014
This is default mode for the Freedom of Information Act.
In a federal FOIA complaint, the ACLU and University of Arizona Professor Derek Bambauer and Associate Professor Jane Yakowitz Bambauer claim that the Department of Homeland Security has failed to respond to requests made in January and February for records that may “shed light on Border Patrol’s extensive but largely opaque interior enforcement operations.”
The professors seek “records related to U.S. Border Patrol’s interior enforcement operations in Tucson and Yuma Sectors, including relevant agency policies, stop data, and complaint records.”
The CBP (Border Patrol) operates far inland these days with the blessing of the DHS. To live in states bordering Mexico is to have your freedom to travel within the country needlessly interrupted by uniformed officers inquiring about your country of origin.
The CBP’s surveillance technology has also wandered much further inland, far past the so-called “Constitution-Free Zone” that extends 100 miles in from the country’s borders. Its drones, which are specifically to be used for border surveillance, have been loaned out to an assortment of federal agencies and local law enforcement.
The CBP has also become a deadlier force, responsible for 27 fatalities in the last three years. This number has increased dramatically, in part because CBP agents seemed to be looking for reasons to open fire — like standing directly in the path of escaping vehicles.
But this isn’t so much about the CBP as it is about the government’s betrayal of the ideals behind the Freedom of Information Act.
“We shouldn’t have to go as far as filing a lawsuit to get these records,” Professor Bambauer said in a statement. “This is public information about a matter of pressing public concern. We cannot allow DHS and Border Patrol to continue operating in our communities without being subject to public scrutiny.”
No, citizens shouldn’t have to file lawsuits just to get the government to turn over responsive records. And, yet, this has become the expected route to freeing information. Nearly every document handed out by the Office of the Director of National Intelligence has been prompted by a lawsuit. The CBP drone documents mentioned above? Those are also tied to a FOIA lawsuit. Without the court’s prompting, it’s highly unlikely any of the documents the CBP “failed” to turn up during its first FOIA search would ever have been made public.
This is now the standard process for obtaining information from the government, whether at the federal level or below. There are many agencies that handle requests with few problems. But the agencies leaning towards the law enforcement/counterterrorism end of the spectrum are far from compliant. They resist, stall or simply ignore requests, pushing inquiring entities towards the courtroom.
This is completely wrong. A FOIA lawsuit is a remedy. Now, it’s just standard practice. And this goes far past simply unacceptable into sickening territory.
Government agencies are supposed to be accountable to the public that pays for everything they do. The FOIA law is simply a tool of accountability that can be wielded by any citizen. But these agencies have perverted the FOIA system so thoroughly that what was supposed to be a last resort (a lawsuit) is now just another step in the FOIA process.
The DOJ likely has no problem with the DHS, CBP and others blowing off FOIA requests until the judicial system orders them to turn over the requested info. After all, in its ridiculous argument for warrantless cellphone searches, it stated that if people felt the police shouldn’t have had access to their cellphone contents, they could always argue for suppression in court. This is the same mentality. Instead of respecting the limitations set by the Fourth Amendment, the DOJ suggests people should use a remedy (suppression) to hold cops accountable rather than expecting the police to police themselves and avoid violating citizens’ privacy and civil liberties.
These agencies know that not everyone has the time or money to battle for the release of documents, so their exposure is limited should they choose not to comply. It’s extremely hard for a nation’s citizens to hold its government accountable if the government is going to use the citizens’ own money against them.
ACLU, EPIC and the EFF have gone to court time and time again with no greater goal than getting government agencies to comply with a federal law. This ongoing subversion of the FOIA is completely unacceptable. This government is giving the public the finger, letting it know that it will only be accountable when forced to.