Using the Freedom of Information Act

The Freedom of Information Act (also called “FOIA”) is a federal law that was enacted in 1966. It establishes the public’s right to obtain information from federal government files. Any person can file a FOIA request for a copy of a government agency’s file, as long as the files are not classified for secrecy. This means that even non-citizens can make a request for a copy of a government file through FOIA. In 1974, after the Watergate scandal, the Freedom of Information Act was amended to force greater agency compliance with requests for information from federal agencies. FOIA was again amended in 1996 to allow for greater electronic access to information, and to allow the government 20 days in which to respond to a FOIA request for information.

The Freedom of Information Act tries to strike a balance between the need for protection of sensitive government information and the interests of private individuals who have an inherent right to known what the government knows about them. The Privacy Act of 1974 also addresses this issue, as it too tries to balance government and private interests when responding to the requests of individuals who wish to look at their government files.

There are nine exemptions to the Freedom of Information Act. These exemptions forbid private individuals from obtaining certain information that is in the hands of federal government agencies. Most of the problems and discrepancies with FOIA center around these exemptions, as individuals feel these exemptions abridge the personal right to know what is in one’s government file.

FOIA applies only to federal government agencies, such as the Department of Homeland Security (DHS). Every non-citizen and naturalized citizen should make a FOIA request in order to obtain a copy of his or her DHS file. The information in an individual’s file will help in sponsoring relatives from abroad, for instance, and is necessary in defending oneself against deportation, should the need arise.

Federal government agencies are mandated by FOIA to comply with public requests for information. They must make the application procedure both public and accessible, so that the public may petition for the documents they request relatively easily. If the government agency does not make it reasonably easy to obtain information from its files, FOIA imposes penalties on the agency for hindering the process of petitioning for information. FOIA provides for recourse to a Federal court is there is any possibility of tampering or delaying in the sending of requested records.

The government agency, on the other hand, can rely on one of the nine exemptions to a FOIA request. These nine exemptions range from a withholding of information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.” The President of the U.S. has virtually unlimited power in declaring something off-limits and can classify any FOIA request as an unwarranted national safety concern.

In the immigration context, Immigration Attorney Leon Wildes used a FOIA request to help his clients John Lennon and Yoko Ono obtain permanent residence status He used of the new Freedom of Information Act in order to uncover a government plot against John Lennon. Mr. Wildes states:

“By the [deportation] hearing date, I had still received no opposing affidavits from the government. It was strange, because in my affidavit requesting the injunction, I alleged that there was a government conspiracy to remove Lennon for political reasons.

Later, I uncovered documents, under the Freedom of Information Act, that showed that Lennon was being selectively prosecuted for political purposes by the Nixon administration. A memo dated February 4, 1972, was forwarded to former Attorney General John Mitchell and Bill Timmons of the White House by Sen. Strom Thurmond, describing Lennon as a threat to the US government and the reelection campaign of Richard Nixon because of Lennon's affiliations with members of the Radical Left, which was then trying to stimulate voter registration of 18-year-olds. The presidential election in 1972 was the first one in which 18-year-olds could vote, making 18- to 20-year-olds a very important constituency. I also uncovered a memo in which Marks is advised by Washington to deny all applications, to revoke the Lennon’s' voluntary departure privilege, and to schedule the deportation hearing for March 16, 1972--strong evidence of prejudgment of the case for political purposes.”

After a four-year struggle, John Lennon eventually obtained his green card. Cruelly and ironically, however, he was later shot to death in the new country he embraced -- a country that both welcomed and repelled him.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada).   www.immigration-etats-unis.com