National Press Club Journalism Institute FOIA case advances

A federal judge is ordering the U.S. Immigration and Customs Enforcement to justify its withholding of information about a Mexican journalist whom the agency detained while he was seeking asylum.

Judge Rudolph Contreras’ ruling came in a Freedom of Information case brought by the National Press Club Journalism Institute and Kathy Kiely seeking records about Emilio Gutiérrez Soto, the National Press Club's 2017 press freedom honoree. Kiely is the Lee Hills Chair in Free Press Studies at the Missouri School of Journalism and the Institute’s former Press Freedom Fellow.

Contreras’ 43-page opinion notes that federal agencies that want to withhold information from public disclosure under the Freedom of Information Act must provide detailed explanations to justify the redactions. The judge made it plain that ICE’s “overly vague” and “scant explanations” do not meet the standard. 

The opinion, filed on Dec. 28, requires the agency to release one document and opens the door to the release of more: Contreras determined that ICE’s filings were “insufficient to justify its use of the contested exemptions” to withhold many others. He is also requiring ICE to conduct a supplemental search for records about any mechanisms used to block phone calls from Gutiérrez’s attorney while the journalist was in ICE detention. Contreras dismissed ICE’s argument that the request was overly broad. The agency declared it couldn’t be sure what the Institute meant by “mechanisms.”

“ICE’s attempt to manufacture ambiguity in this way is unconvincing,” Contreras wrote.

Contreras’ decision comes in the sixth year of efforts to keep Gutiérrez from being deported to his home country, where he has been threatened with death. In September, a three-judge panel of the Board of Immigration Appeals ruled Gutiérrez eligible for asylum. He has a March 18 court date in El Paso where he is expected to be granted that status.

“Even as he has been exiled from his homeland and the work he loved, Emilio continues to contribute to the profession of journalism,” said Kiely. “My hope is that this case will help not only him but journalist watchdogs in their efforts to be a check on abuses of power.”

Adam Marshall, a senior staff attorney at the Reporters Committee for Freedom of the Press and an attorney on the case, said Contreras’ decision was a “powerful reminder that transparency is the rule, not the exception. The government bears the burden to justify secrecy when it comes to documents about Mr. Gutiérrez, and it failed to do so here.” 

Chuck Tobin, with Ballard Spahr LLP in Washington D.C., which is providing pro bono legal counsel to Kiely and the Institute, added: “So many questions remain about why Emilio and Oscar were targeted for rushed deportation despite following the lawful immigration process.  For them, and for all journalists seeking asylum, we will continue to press the government for answers.”

For detailed background on the case, click here.