The FOIA Border

The United States District Court for the District of Columbia (Judge Cobb) denied a preliminary injunction sought by Heritage Foundation

Plaintiffs Mike Howell and the Heritage Foundation seek a preliminary injunction compelling Defendant U.S. Department of Homeland Security (DHS) to release, under the Freedom of Information Act (FOIA), “[a]ll documents and communications between U.S. Customs and Border Protection [(CBP)] and the Executive Office of the Vice President related to the southwest border or illegal immigration” from January 20, 2021, to the present—and to do so in a matter of days due to the impending November 5, 2024, presidential election. ECF 1-5 at 2.1 Plaintiffs insist that they are entitled to expedited processing of their request under the relevant FOIA provision and DHS regulation because, “[g]iven the importance of immigration to the voting public, Americans have a right to know what Vice President Harris did in her role as Border Czar as well as what she did to address the border crisis.” ECF 7-1 at 11.

Yet, by failing to show their entitlement to expedited processing, or any processing, of their request under FOIA and applicable DHS regulations, Plaintiffs fall far short of a preliminary injunction’s high bar. Plaintiffs are unlikely to succeed on the merits of their expedited processing request because they failed to exhaust FOIA administrative processes, and they advance dubious claims of irreparable harm and the public interest. Whatever the virtue of Plaintiffs’ attempt to expand transparency into the Vice President’s role as so-called “Border Czar” in the final days before an election in which she is a major party’s presidential candidate, the law plainly prohibits Plaintiffs from crossing FOIA’s own border between administrative process and judicial review. The Court will therefore DENY Plaintiffs’ motion for a preliminary injunction.

(Mike Frisch)