FOIA ‘one of the last tools’ for clarity on the family separation crisis

As immigration reporters flood the Administration for Children and Families with records requests, process delays are making accountability difficult for journalists on the immigration beat.

The last time journalists inundated the government agency responsible for hiring private contractors to house immigrant families and children was 2014, during the Obama administration. At the time, thousands of children were crossing the border without parents, and the Administration for Children and Families (ACF) fielded 1,864 FOIA requests, compared to 244 during its 2017 fiscal year. This April, as President Trump’s “zero tolerance” policy began and 2,300 migrants were separated from their parents, reporters started paying attention again.

In June, the agency received 137 requests, compared to only 176 in the six months prior. The vast majority of those requests concerned immigrant children, according to Kimberly N. Epstein, who has been the FOIA officer at ACF since 2013. But few of those requests have been processed to date. “We are pedaling as fast as we can,” says Epstein. “To have that many in a month that are pure FOIA requests is a lot.”

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Epstein blames the delays on staffing issues. “Right now, we are having some staff turnover, and though we have a contract, so we can bring on contractors, it’s difficult because federal security clearances take a long time,” says Epstein, adding that some requests don’t recognize the limits of what her office can process. “We are documents only,” she says. “We don’t answer questions, so when people come and say, How many kids are being separated?, we don’t have that information.”

Although ACF, a division within the Department of Health and Human Services, played no direct role in separating migrant children from their parents, it oversees the Office for Refugee Resettlement, or ORR—and processes its FOIA requests. By late June, HHS head Alex Azar said the agency had 2,047 such children in its custody. On June 26, a federal court issued a national injunction demanding the reunification of parents and children within a month. Soon after, officials within the agency stopped confirming how many children it was holding, and then days later, Azar once again confirmed reversed course and confirmed there were fewer than 3,000 children in the agency’s care, including around 100 under the age of 5.

 

We have to have someone’s signature on the line. It’s an important window into the terms everyone agreed to before this crisis started. Then maybe, there can be some kind of accountability.

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As a court-ordered deadline expires today for reuniting those 100 children with their families, the lack of official documentation has directed unprecedented attention to ACF, which already had a backlog of FOIA requests waiting to be processed. For the first quarter of fiscal year 2018, which runs from October 2017 to the end of December, ACF had 178 FOIA requests backlogged. For the second quarter 2018, which ended on March 31 of this year, there were 171 FOIA requests backlogged.  A review by CJR of ACF’s performance under FOIA, which is reported in annual reports by HHS, found that it even has “pending requests” dating to 2014.

ICYMI: “Nobody in the old corporate superstructure—nobody at CBS News—was prepared to deal with this kind of onslaught”

Additionally, its online “reading room,” where frequently requested records should be made available, hasn’t had any new documents uploaded since 2015. The last successful grant posted was for a homeless youth outreach program. “We are trying to put things there, but our first priority is to answer the requests,” says Epstein. “And we’ve had some lawsuits, and the lawsuits tend to be absorbing and take a long time.”

One of those lawsuits was filed in late March by Reveal, the nonprofit investigative journalism organization with the Center for Investigative Reporting in Emeryville, California. The complaint argues that the agency’s failure to disclose federal records on the procedures and contracts related to housing migrant children are improper, especially at a time when “the records pertain to a fast-changing matter of great public interest.”

Nearly seven months before the child separation crisis exploded, Patrick Michels, an immigration reporter with Reveal, was already closely watching the agency, and had filed several requests seeking agency contracts with private companies housing migrant children. In October, he wrote a series of stories about a migrant teenager seeking access to a Texas abortion clinic. “For me, I was new to the immigration beat, and new to ORR,” he says. “I got the sense it was a small agency whose job was being rewritten week to week.”

What Michels has since sought is straightforward: the signed agreements between ORR and any private companies housing migrant children or families. As some outlets have reported, including New York Times reporters Manny Fernandez and Katie Benner, private companies are profiting from the billion-dollar business of migrant detention, especially along the southwest border.

These stories have largely been based on information culled from a database run by HHS under the Tracking Accountability in Government Grants System, or TAGGS, which tracks grants awarded by the 11 agencies within HHS, including ACF. Using the database, it is possible to figure out which companies are receiving federal funds under what’s called the “unaccompanied alien children program.” For example, a search for all grant awards in 2018 results in a contract tally of $965 million. It’s also possible to drill down into individual awards, but the information available is not particularly revealing, beyond the dollar figures for specific programs run by private contractors.

 

Their media office is very circumspect in their statements they give out, and in a moment like this, it’s very limited in what kind of access and things they will say about what’s going on.

 

Despite the impression of transparency, the database has limitations. What services contractors provide are not included in any detail, and there’s no disclosure about the information sharing agreed on between the government and private contractors. Finally—and perhaps most importantly—the names of the people who signed such agreements are nowhere to be found.

Without the signed contracts, it’s difficult to investigate the crisis, since there’s no way to parse whether a company violated the terms of their agreement with ORR. Additionally, it’s not possible to judge whether the government responded to failures by contractors. “Were there any financial consequences for the grantee not holding up its end of the agreement?” Michels writes in an email. “Because we’ve found plenty of times when ORR grantees have been the subject of allegations of neglect or abuse, but little evidence that ORR has scaled back its placements or otherwise punished a grantee as a result.”

Michels believes a full accounting of the chaos unfolding at the border over the last few months won’t be possible without the signed contracts. “That’s the only way to close the loop,” he says. “We have to have someone’s signature on the line. It’s an important window into the terms everyone agreed to before this crisis started. Then maybe, there can be some kind of accountability.”

In the meantime, he wants reporters to keep filing FOIA requests with ACF and ORR. “This is one of the last tools you can trust to get some information about what is going on,” he says. “This is very much an agency that needs some oversight. Their media office is very circumspect in their statements they give out, and in a moment like this, it’s very limited in what kind of access and things they will say about what’s going on. That’s why it’s so important to get documents inside the agency to figure out what’s happening.”

Image via Pixabay.

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Mya Frazier is a business and investigative journalist based in Columbus, Ohio.