Good Luck Getting the Government Data You Need

Getting data out of your government shouldn’t be hard. There are fundamental guarantees about transparency, designed to ensure that citizens can be aware of the work of the government. At the federal level, there is the Freedom of Information Act (FOIA).

FOIA ostensibly guarantees you the right to access non-classified (or otherwise private) data within 20 days of your request. In reality, FOIA is hopelessly broken, with routine requests taking months (or years) to fill and denials being utterly arbitrary. Sometimes, however, the denials don’t seem arbitrary. Rather, those denials seem specifically targeted to deny necessary data. It seems that way because they are.

Immigration attorneys, unsurprisingly, need access to Immigration and Customs Enforcement (ICE) data to represent their clients who are seeking citizenship or facing deportation. Imagine making a FOIA request for your client’s information and being forced to wait over two years for a response. Then imagine that the response was that you can’t have the data because you might use it to defend your client (PDF from ACLU Colorado’s lawsuit about the issue).

On September 3, 2015 (more than two years after the FOIA request was submitted to USCIS), ICE responded to Ms. Smith [an immigration attorney] as follows:

ICE’s records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.

It’s tempting to call this Kafkaesque because so many Byzantine aspects of government deserve that label. This, however, is more Hellerian—a classic Catch-22. You need data from the government to defend a client and prove they are not a fugitive, but you cannot have that data because the government has already charged them with being a fugitive. There’s no way out of that trap unless the ACLU wins this lawsuit. Even if they do, though, the victory is likely a bit hollow, because the government will still take forever to get you the data.

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