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Wednesday, November 1, 2023

ICE Did Not Violate Federal FOIA in Redacting Records

A requestor filed several FOIA requests with United States Immigration and Customs Enforcement (ICE) under the federal FOIA statute, seeking records regarding his transfer from ICE custody to Indiana where he faced criminal charges. ICE produced certain records, but redacted (1) information protected by attorney-client, work product, or deliberative process privileges under FOIA exemptions; and (2) identifying information of government employees under other FOIA exemptions because disclosure would put employees at risk of harassment and serve no public benefit. The requestor sued ICE, alleging ICE’s redactions were improper. The district court ruled in favor of ICE, finding it properly redacted information. On appeal, the Seventh Circuit Court of Appeals also ruled in favor of ICE in Vidal-Martinez v. United States Department Of Homeland Security

First, the Seventh Circuit rejected the requester's argument that ICE could not rely on the attorney-client privilege to redact or withhold records because of the crime-fraud exception to the attorney-client privilege, finding no evidence to support the requestor’s claims that ICE engaged in any criminal conduct or sought to mislead the court.  

Second, the Seventh Circuit rejected the requestor’s petition for attorney’s fees, finding that ICE consistently maintained its intent to respond the FOIA requests both before and after the requestor sued, and any administrative delay in ICE responding to the FOIA requests did not trigger any award of attorney's fees under the federal FOIA statute.

Post Authored by Eugene Bolotnikov, Ancel Glink


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