In an ongoing battle in the Southern District of New York about whether the government must disclose metadata when it releases documents under the Freedom of Information Act, it now appears Immigration and Customs Enforcement (ICE) may have lied in a declaration it filed with the court. This comes on the heels of our earlier report about the FBI lying in a FOIA case in California and does not instill confidence that the government is acting honestly or ethically in FOIA litigation.

The case is National Day Laborer Organizing Network v. ICE, and it was brought by the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic at Cardozo Law School. The plaintiffs are trying to get information on an ICE program called “Secure Communities” that conscripts state and local entities into enforcing federal immigration law by requiring the entities run the fingerprints of all individuals arrested (not convicted) through a federal database.

As part of the case, the plaintiffs requested the government produce metadata with the FOIA records released in the case. The court agreed and issued a strong order in February to that effect.1 The government appealed the order almost immediately and moved for a stay with the district court. As part of the government’s stay motion, it argued that it would be too costly to produce metadata in response to a FOIA request. ICE submitted a declaration from Catrina Pavlik-Keenan, director of the ICE FOIA Office, who stated ICE had tried to use a software application made by a company called Clearwell to produce records in a format requested by the plaintiffs but “encountered numerous technical difficulties.” These difficulties resulted in:

an enormous expenditure of manpower and financial resources . . . OPLA [ICE] estimates that it was forced to expend more than $270,000.00 in upgrades, including the acquisition of a new $32,000.00 server, . . . to have access to and run the application. Further, OCIO [ICE] was forced to suspend many of the agency’s security protocols in order to allow the Clearwell application, which is a web-based application, to run properly.

(PK Decl. ¶ 11.) Well, according to Clearwell, this is not correct. As part of a long post on its website debunking Ms. Pavlik-Keenan’s declaration, Clearwell stated the following:

Neither OPLA nor any other part of ICE paid a dime for upgrades or a new server. In reality, its use of the product for this matter is covered under ICE’s existing license, and we provided an extra server and services for free to help them meet a tight deadline. . . .

In 16 working days, Clearwell was used to process a large volume of information and produce nearly 15,000 pages of Opt-Out Records . . . To help ICE meet its deadline, two Clearwell consultants worked onsite during this period – at absolutely no cost to ICE.

It appears Clearwell complained to ICE about this and other inaccuracies in the declaration (Clearwell’s competitors were using it to trash Clearwell in the eDiscovery software market), and this prompted ICE to submit a supplemental declaration to “clarify a few statements made in two prior ICE declarations.” The supplemental declaration of Ryan Law recanted several statements from Ms. Pavlik-Keenan’s declaration, including the ones above. Mr. Law stated:

the $270,000.00, which includes $32,000.00 for acquisition of a new server, has not yet been spent. . . . Clearwell loaned a new server to ICE for the duration of the January 17, 2011 production.

(Law Decl. ¶ 6.)

Mr. Law asserts that “none of [the inaccurate statements from ICE’s first declaration are] material to ICE's ability to produce the metadata at issue,” and Clearwell implies that it doesn't really matter if declarants tell the truth. (Clearwell describes a declaration as “an advocacy document, not a ruling from a judge.”) However, all declarations, including Ms. Pavlik-Keenan’s, are signed under penalty of perjury and all assertions within a declaration are required to be facts within the declarant’s personal knowledge that would be admissible as evidence in the case. See Fed. R. Civ. P. 56(c)(4). And in fact, the government relied on Ms. Pavlik-Keenan’s statements to support its argument to the court that it would be “irreparably injured” if it were forced to comply with the court’s order to produce metadata. (See Def. Motion for Stay, p. 22, 24.)

As noted above, it’s troubling that we now have evidence that the government has lied in two FOIA cases—both of which raise important questions about how the government is surveilling and collecting information on people in the United States. As the court stated in Islamic Shura Council v. FBI, the court cannot perform its important task “of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty . . . if the Government lies to it.” Case No. 07-1088 (C.D. Cal. April 27, 2011).

Clearwell implies that there are other inaccuracies in Ms. Pavilk-Keenan’s declaration. Clearwell says:

There is still a lot that we cannot say publicly about the PK Declaration, out of respect for ICE (our customer) who’s engaged in active litigation. But we would be happy to provide further information to concerned parties under NDA.

Let’s hope those inaccuracies aren’t also factual statements the court relies on in deciding the government’s motion for a stay in the case.

• 1. This case raises the very important questions of whether the government must produce records in the format they are kept by the government (for example, produce a document as an actual excel file, rather than as a paper print out of that excel file) and in a format that is useful for FOIA requesters and the general public. It's the first federal case in the country where a court has determined metadata should be produced under FOIA. We’ll be following this case closely because it affects our own FOIA requests and our ability to analyze the documents we receive.