By Christopher Cole

Law360 (June 2, 2020, 5:47 PM EDT ) A D.C. federal judge asked an immigrants' advocacy group on Tuesday why it urgently needs records on how authorities dealt with coronavirus outbreaks in detention centers, but said he will consider making the government act faster on the request.

The American Immigration Council sued U.S. Immigration and Customs Enforcement on May 7, claiming the agency was dragging its feet in responding to a Freedom of Information Act request to learn more about how ICE acted to contain the spread of COVID-19.

U.S. District Judge Thomas F. Hogan asked in a phone hearing what will happen if the agency takes several months, as it has estimated, before it can comb through and then hand over some 800 pages of responsive documents.

"I can see the concern that you have on this," Judge Hogan told an in-house lawyer for the American Immigration Council, but at the same time said he was weighing the legal questions involved in a FOIA compliance order that the group is seeking.

The advocacy group wants an injunction compelling ICE, a part of the U.S. Department of Homeland Security, to produce records on an expedited basis rather than taking months or years, which it says can be the typical timeline. Because of the health crisis, the records are needed sooner than usual, the group argued in court filings.

DHS — which as the parent agency took over the request from ICE — agreed to process the request on an expedited time frame but then didn't respond further, the group says. The agency blames a backlog of FOIA requests, numbering in the hundreds.

Judge Hogan noted that FOIA cases "usually don't go on an expedited schedule," and also told an attorney for AIC that, "under the law, you have a stronger burden" to show why a mandatory order should be issued.

DHS argued in a filing on May 26 that the immigration rights group had failed to show two key elements for the request — irreparable injury and the likelihood of success on the merits — so the judge should deny the order and "not compromise the delicate balancing of interests that Congress undertook in enacting FOIA."

But in the hearing, AIC attorney Claudia Valenzuela said she believes it's "an open question" as to whether the high bar for a mandatory injunction applies to FOIA actions and that, "to maintain the status quo would mean that the agency would not comply with its duty under the statute."

Still, "even if in the alternative," she argued that the group's request for court intervention fits within both the traditional as well as heightened standards for injunctive relief. That's because the documents relate to the urgency of the virus threat to immigrant detainees, she said.

"This is an historic pandemic, unprecedented in nature. It is fast moving and life-threatening," Valenzuela said. "Jails and detention centers are particularly susceptible to the spread of the virus because of the inability of individuals to maintain social distancing [which is key]."

She also said ICE "does not have a good track record" when it comes to medical care for detainees. She emphasized that "we do not pursue lightly" the request for a FOIA injunction.

Judge Hogan questioned both sides about the number of COVID-19 cases among detainees, of whom there are 754 under isolation monitoring, and three have died, according to the latest figures. Valenzuela credited the agency with publicly releasing some data already.

The judge also wanted to know if there had been any efforts to reduce the workload involved in the FOIA request and to "prioritize those records" to make it easier to begin releasing them. He also asked about the department's FOIA caseload.

According to Alexander Sverdlov of the U.S. Department of Justice, representing DHS, there are several pandemic-related FOIA cases in litigation, and DHS is already handling 257 information requests overall related to COVID-19.

Judge Hogan told the government that "your basic response, it seems to me [is] we don't know when it's going to be" in terms of getting back with the advocacy group.

Sverdlov said he wouldn't phrase it that way, but that "there is a basic resource constraint" that DHS faces. "The statutory requirement is for the agency to produce records as soon as practicable," Sverdlov said. "That is ultimately the merits question."

"We certainly understand the plaintiffs' desire to receive the documents as soon as possible," he said, but "[they] are facing no imminent deadline" that would justify a mandatory injunction. Sverdlov also argued that such an order would put other FOIA requesters at a disadvantage.

Sverdlov said that even though no documents have been produced yet, the agency has been able to come up with a time frame of about 250 pages per month.

Valenzuela said that was the first time she was hearing of such a timeline, but it seemed "not fully sufficient," because DHS' standard production has been 500 pages per month.

Judge Hogan asked the government to get back with him by Friday with more information concerning other FOIA cases that the department has in litigation, and he will rule on the injunction request by the middle of next week.

The American Immigration Council is represented in-house by Claudia Valenzuela and Emily Creighton.

DHS is represented by Alexander V. Sverdlov of the U.S. Department of Justice Civil Division's Federal Programs Branch.

The case is American Immigration Council v. Department of Homeland Security et al., case number 1:20-cv-01196, in the U.S. District Court for the District of Columbia.

--Editing by Nicole Bleier.

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