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More Proof Needed in US Customs FOIA Suit

In a case involving a group of immigrants and attorneys suing the United States government for failing to answer thousands of FOIA requests, US District Judge James Donato said the plaintiffs need more proof in order to certify the class they’re putting forward. If it is eventually approved, it will be the first class in history to be certified under the Freedom of Information Act.

However, the plaintiffs have a long way to go to achieve their goal, as Donato says the “systemic violations” the plaintiffs believe occurred with the government’s refusal to respond to almost 38,000 FOIA requests – making them wait a year for information despite the law mandating that responses be sent out within 20 days – is not enough to certify them.

The argument put forward by defending US Attorney Emily Nestler was that each FOIA request is individual, and therefore some requests may take longer than others, and because of this the plaintiffs lack commonality, a requirement for class certification. But the judge rejected Nestler’s argument, citing the law’s 20 day response requirement (that features a possible 10-day extension).

“You don’t have the flexibility to say I will take 40 days for one person because it’s more complicated,” said Donato. “What’s the uncommonness?”

The judge is going to delay ruling on the motion until the plaintiffs present more evidence of the agency’s FOIA processing practices, including how much funding and manpower it devotes to answering requests.

The federal Freedom of Information Act was originally enacted in 1966 after a push by representatives to make government information available to the public, and was signed into law by President Lyndon B Johnson despite his apprehensions about certain types of unclassified information remaining secret. The Freedom of Information Act states that any individual has the right to request access to any federal executive branch agency records or information. These branches include executive departments, military departments, Government corporations and Government controlled corporations, as well as any other other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

It does not include, however, any records associated with Congress or the federal judiciary, and there are nine exemptions to the law in total, as well as three special law enforcement records excluded.

If you would like more information on the Freedom of Information Act, or have questions about how to make an FOIA request, please get in touch with Lyttle Law Firm either via the website or by calling 512-215-5225.

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