April 20, 2011, New York – In an important test of open government, a federal court hearing is scheduled tomorrow in the Southern District of New York at which the Obama administration will seek to convince Judge Shira Scheindlin to issue a stay of her earlier ruling requiring the federal government to provide critical electronic information, known as metadata, in the Freedom of Information Act (FOIA) case, NDLON v. United States Immigration and Customs Enforcement (ICE). NDLON seeks public records from the government relating to the Secure Communities program, a controversial ICE initiative that enlists local and state police in enforcing federal immigration law.

In February, Judge Scheindlin ruled that metadata is an integral part of an electronic public record and issued two orders requiring four federal agencies – ICE, the Department of Homeland Security, the Federal Bureau of Investigation and the Office of Legal Counsel – to produce the requested FOIA documents including metadata in file formats that would make it easier for plaintiffs to review the thousands of pages of released records. The federal agencies then filed a Motion for a Stay pending appeal to the Court of Appeals for the Second Circuit.

“It is essential for the public to obtain complete and accurate electronic records from the government in response to a FOIA request,” said Anthony Diana, who joined the plaintiffs’ legal team pro bono last fall and is co-leader of Mayer Brown’s Electronic Discovery and Records Management group. “The government demands such information from individuals and organizations, and it is only fair that the government is held to the same standard.”

Judge Scheindlin’s orders were the first recognition by a federal court that metadata is part of the record in a FOIA case, though it is recognized as such in both state FOIA or “sunshine” laws and the Federal Rules of Civil Procedure. Metadata, often referred to as “data about data,” includes all of a document’s electronically stored information. Such data would provide plaintiffs with information in a searchable format on how production documents are organized and kept, their relationship to each other and who created or modified the documents and at what time.

“The Obama administration came into office with a promise of open and transparent government,” said Sunita Patel, a staff attorney of the Center for Constitutional Rights. “The government's appeal and stay is a thinly veiled attempt to block the public from essential information about Secure Communities. We have come to expect these types of delay games in this case, all because the agencies don’t want the public to know the truth about its immigration enforcement plans.”

“ICE’s decision to strip all files of metadata and convert them to the least usable format possible before turning them over is only one example of its resistance to publicly disclosing any information about the dangerous and misnamed Secure Communities program,” said Jessica Karp, NDLON staff attorney. “We are pleased the court has ruled in favor of disclosure of metadata. We are hopeful that any additional light that can be shed will only further reveal ICE’s Secure Communities program as a dangerous initiative that ensnares local police into federal immigration enforcement.”

“In the spirit of open government, FOIA requestors should be provided with records that can be easily reviewed, not massive PDF files that require requestors to find a needle in a haystack,” said James F. Horton of the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law.

NDLON v. ICE litigates President Obama’s flagship “Secure Communities” biometrics program, currently operating in 1,188 jurisdictions in 41 states as of April 12, 2011. Rights groups say the program makes state and local policing central to the enforcement of federal immigration law. The program automatically runs fingerprints through immigration databases for all people arrested and targets them for detention and deportation even if their criminal charges are minor, eventually dismissed or the result of an unlawful arrest. The documents released as a result of the litigation have shown widespread internal agency confusion about the program’s voluntary nature as well as the government’s heavy-handed implementation strategy.

The lawsuit was originally brought by the Center for Constitutional Rights (CCR), National Day Laborer Organization Network (NDLON) and Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law. Mayer Brown serves as co-counsel in the case.