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Brennan Center v. Department of State

The Brennan Center filed a lawsuit under the Freedom of Information Act against the Department of State over records related to the president’s travel bans.

Published: October 4, 2017

On Octo­ber 2, 2017, the Bren­nan Center­—in conjunc­tion with Muslim Advoc­ates and Amer­ic­ans United for Separ­a­tion of Church and State—­filed a lawsuit under the Free­dom of Inform­a­tion Act (FOIA) against the Depart­ment of State for docu­ments related to the “world­wide review” of inform­a­tion-shar­ing prac­tices, policies, and capab­il­it­ies of all foreign coun­tries. The admin­is­tra­tion says it used reports related to this review, which have not been disclosed, as the basis for making a perman­ent a travel ban over­whelm­ingly target­ing predom­in­antly Muslim coun­tries. 

This litig­a­tion involves a subset of docu­ments reques­ted under a FOIA request filed in July 2017. In addi­tion to docu­ments pertain­ing to the world­wide review, that broader request sought records pertain­ing to the Trump Admin­is­tra­tion’s “extreme vetting” policies, which are burden­some visa screen­ing initi­at­ives targeted at certain categor­ies of applic­ants, and which are likely to most impact Muslims. Given the wide-ranging impacts that extreme vetting and the Muslim ban have had on both communit­ies at home and over­seas, the public has a right to know more about how they came to be.

In response to a Janu­ary 2018 court order in the FOIA litig­a­tion at issue, the govern­ment produced an index contain­ing curs­ory descrip­tions of the docu­ments with­held and the FOIA exemp­tions applic­able to them, but the index provided was insuf­fi­ciently detailed to eval­u­ate whether the docu­ments were prop­erly with­held. The parties are now brief­ing summary judg­ment on whether: 1) the govern­ment’s search for relev­ant docu­ments was adequate; and 2) the FOIA exemp­tions used to justify with­hold­ing relev­ant docu­ments are appro­pri­ately claimed.

Dissent­ing in Trump v. Hawaii, Justice Sonia Soto­mayor cited govern­ment disclos­ures compelled by this lawsuit as evid­ence that the world­wide review was not conduc­ted in good faith: “Ongo­ing litig­a­tion under the Free­dom of Inform­a­tion Act shows that the Septem­ber 2017 report the Govern­ment produced after its review process was a mere 17 pages…[t]hat the Govern­ment’s analysis of the vetting prac­tices of hundreds of coun­tries boiled down to such a short docu­ment raises seri­ous ques­tions about the legit­im­acy of the Pres­id­ent’s proclaimed national-secur­ity rationale.” 138 S. Ct. 2392 at 2443.

Read the complaint here

Read the Motion for Summary Judge­ment here

Read the Bren­nan Center’s report on Extreme Vetting here.

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