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Opinion: Why I sued the federal government for records about border operations

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A fundamental tenet of democracy is that governments derive “their just powers from the consent of the governed,” as stated in the Declaration of Independence. The Freedom of Information Act, passed in 1967, gives the people the right of access to government information, so that they can make informed decisions about actions of the government.

In 2018, the U.S. government adopted a number of policy decisions that greatly impacted life in border communities like El Paso. The Trump administration implemented efforts aimed at deterring migration, through policies such as family separation, turning back asylum seekers at the border, and using border-enforcement agencies in more military-style operations.

Using the Freedom of Information Act, I sought government records to better understand the decisions that led to the implementation of these policies. Unfortunately, the departments of Homeland Security and Health and Human Services simply ignored my multiple requests, in violation of freedom of information laws.

So in October 2019, after more than a year of receiving no response at all, I filed a lawsuit in federal court in El Paso. My expectation was that the lawsuit would lead the government to finally provide the requested information, hopefully within a couple of months.

Instead, the lawsuit dragged on for two years.

In January 2021, U.S. District Judge David Guaderrama ordered the government to speed up production of the requested documents and criticized the slow pace of response to my FOIA request. He noted that CBP’s plans provided to the court meant it would take six years from the onset of the lawsuit to provide the requested documents.

A few weeks later, the judge ordered the government to produce all relevant documents by June 2021.

The government complied with the order, but I challenged a number of redactions in documents they produced. On the eve of trial in September, U.S. Customs and Border Protection agreed to remove all the redactions I had objected to.

The documents released as a result of the FOIA lawsuit showed that the Trump administration falsely claimed that it was turning back asylum seekers because it lacked detention space at ports of entry. 

Other documents showed that the Border Patrol planned to stage a “crowd-control exercise” next to South El Paso’s Chihuahuita neighborhood on Election Day  2018 in an effort to garner media attention at a time when President Trump was using the threat of a “migrant caravan” to woo voters in the mid-term election.

A Customs and Border Protection officer blocked Guatemalan migrants from crossing the U.S.-Mexico border on June 2, 2018. (Robert Moore/El Paso Matters)

This week, my lawsuit was formally settled and dismissed. The government, without admitting any wrongdoing, agreed to pay my legal fees of $56,000.

It marked the second time this year that the federal government agreed to pay more than $50,000 in legal fees to settle a FOIA lawsuit in El Paso.

U.S. District Judge Frank Montalvo in January ordered Immigration and Customs Enforcement to pay more than $52,000 in legal fees that El Paso’s Diocesan Migrant and Refugee Services incurred while trying to obtain records from ICE. He ruled that ICE failed to adequately search for records sought by DMRS.

Suing the government is not something I relished, or could afford to do.

My attorneys, Chris Benoit and Lynn Coyle, agreed to represent me at no cost to me because they believe government transparency is an important issue. (They also represented DMRS in the ICE lawsuit). The Freedom of Information Act allows plaintiffs to recover legal fees from the government if they substantially prevail in a lawsuit. We were confident we would prevail, but we only expected the case to take a few months. Instead, it took two years, sometimes diverting Benoit and Coyle from other cases.

I am grateful that Judge Guaderrama forced the government to produce the documents I requested. Judges Guaderrama and Montalvo have sent powerful signals to government agencies that transparency laws are taken seriously by the El Paso federal judiciary.

It’s unfortunate that government defiance of the law cost taxpayers more than $100,000 in legal fees this year in El Paso, plus costs incurred by the U.S. Attorney’s Office in litigating records requests that should have been fulfilled without the need for court intervention.

My hope is that my lawsuit, and the work of others fighting for transparency, will motivate federal agencies to fulfill their responsibilities under the Freedom of Information Act.

I’m heartened that CBP recently began an accountability and transparency web page, which “provides the public with statements, policies, reports and other important information concerning critical incidents and related Office of Professional Responsibility (OPR) reviews and investigations.”

Government transparency is an issue that rises above partisanship. Our democracy functions when the people can access information about how their tax dollars are being spent. And that information should be provided quickly. It shouldn’t take more than three years and a lawsuit for the government to live up to its most basic democratic responsibilities.

Cover photo: Members of the Border Patrol’s El Paso horse unit attended an October 2019 event near the Paso del Norte Bridge. The unit was among those scheduled to participate in a controversial crowd control exercise in November 2018 in the same area. (Robert Moore/El Paso Matters)

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Robert Moore

Robert Moore is the founder and CEO of El Paso Matters. He has been a journalist in the Texas Borderlands since 1986. His work has received a number of top journalism honors including the Robert F. Kennedy Journalism Award, Pulitzer Prize finalist and the Benjamin C. Bradlee Editor of the Year Award. Moore’s work has appeared in the Washington Post, Texas Monthly, ProPublica, National Public Radio, The Guardian and other publications. He has been featured as an expert on border issues by CNN, MSNBC, BBC, CBC and PBS.

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