Q. What are your current job responsibilities?
A. I work at a nonprofit law firm that represents people harmed by the government’s failure to regulate immigration. Besides our general courtroom advocacy work, we also have an active investigative and FOIA program that I’ve been helping to run since I started in 2015. We frequently file FOIA suits when requests are stonewalled or when records are improperly withheld. We work on FOIA with agency insiders, Hill staffers, and immigration-control activists in general.
Q. About how many requests, appeals, and lawsuits have you worked on at IRLI?
A. Since we started our FOIA practice in 2015, we’ve submitted around 150 requests (mostly federal), each one containing around 5 or 6 request items. Currently, we have about a dozen appeals pending and around 5 lawsuits, each one regarding 5 to 8 requests.
Q. What would you say are your most notable FOIA matters at IRLI?
We uncovered some highly revealing emails from 2013 between ICE agents and their D.C. superiors and between ICE agents themselves, the latter expressing frustration they were being forced to release from detention criminal aliens previously deemed a ‘public safety risk’ due to the GOP-led sequestration. The agents basically call this political theatre performed at the expense of the public’s safety.
Additionally, we obtained more than one thousand pages of DHS Secretary’s calendar records and found, among other things, that he met routinely provided access to open-borders groups and lobbyists. We also pinpointed the date of a key meeting in which the President’s 2014 executive amnesty program appeared to have been hatched.
Q. What is the most unusual agency response you have received to a FOIA request?
A. We’re frequently told the government “does not track the data” we’re requesting. It’s a curious response as it’s not an admission that the information isn’t held and maintained; it simply means they don’t actively track or tally it. For this reason, for data requests we always specify that the agency should pull the data regardless.
Q. What do you like and not like about working on FOIA matters?
A. Being able to generate original content for and generally enlighten the news-reading public on matters the government doesn’t want them to know about can be very satisfying. But to be honest, the FOIA process is very draining for the most part. There are numerous ways the government ensures that requestors do not receive information to which they’re entitled and keeps certain information out of public view. Being able to know the policy area closely, how the agencies work, how to appeal effectively, and what precisely to ask for does go very far, but it’s highly frustrating to know those assets and efforts shouldn’t be as necessary as they are.
Q. If you could change one thing about the statute, what would it be and why?
A. Obviously Exemption 5 has to be narrowed if FOIA is to mean anything. It’s being employed more and more amongst the agencies, apparently becoming a ‘go-to’ redaction for yes-men bureaucrats. Throughout the Obama years, a big problem for immigration-control activists has been the administration pushing through open-borders policies via agency directives that go completely against statute. Being able to ascertain the legal rationale for those directives would go a long way in putting top cabinet officials and their attorneys on notice and curbing executive overreach. Mind you, I’m not calling for transparency when it comes premature disclosure of policies under review; only for transparency of pre-decisional documents with regards to implemented decisions. A time limit on the use of Exemption 5 might be a less complicated -- though less satisfactory -- way of achieving this.
Before the latest FOIA amendments, it had been discussed among frequent requestors that a public interest balancing test be employed with regards to Exemption 5. This would prevent agencies from hiding their policy deliberations, for example, when the public benefits of disclosure outweigh the risks of harm. At the very least, such a test would check the agencies blanket use of Exemption 5.
FOIA officers routinely defend themselves to me by saying Congress just won’t appropriate the necessary funds i.e. for more officers, better processing systems, etc. Taking their excuses at face value, I say increase the fees then. Fees could be dramatically ramped up, for instance, for commercial requestors, such as the now-common hedge fund requestors who, of course, can and will pay fees. Also, being more forthcoming with documents and preventing litigation would free up resources and decrease the amount of litigation fees expended by agencies after they lose FOIA fights.
Q. If the government would release any document(s) you requested, what would you ask for and why?
A. We sued DOJ in an attempt to obtain the legal opinion published by the Office of Legal Counsel regarding Obama’s 2012 Deferred Action for Childhood Arrivals amnesty announcement. Through this process, we found out that the opinion was “oral” (according to them) and never actually formally drafted. Since then, I’ve raised this curious issue in op-eds: why did DOJ subsequently opt for a more transparent and formal drafting process two years later for the identical Deferred Action for Parents of Americans program? So there’s that, and illegal alien-crime figures as well. On behalf of a client of ours, Don Rosenberg, whose son was killed by an illegal alien, we’re trying to retrieve the data needed to ascertain these figures. As Don’s mentioned in op-eds, “After all, the Justice Department can tell me how many pick-pocketing crimes there were last year but not how many people were killed by illegal aliens.”
Q. Where were you born/grow up?
A. I was born just outside Seattle, grew up in Vancouver, British Columbia, and lived in Beijing, Hong Kong, and Sydney, Australia for many years.
Q. Where have you attended school and what did you study?
A. I studied English Literature at the University of British Columbia and law at the University of New South Wales in Sydney.
Q. What do you like to do in your spare time?
A. I write for our staff blog when I’m free -- always about immigration law and policy. I publish the posts at The Hill, National Review, Daily Caller, and several other outlets. I also read a lot.
Q. If you could meet any historical icon, of the past or present, who would it be and why?
A. I don’t think I need to meet with anyone in particular, but there are certainly people who I wish were still around. I grew up reading George Orwell and he’s certainly been an important influence. His articulation on the specialness of the English alone should guarantee his place in the canon, although it really was his ability to persevere through the intellectual intimidations of his time that impresses me most. It was impossible for him to not speak his mind and point out the hypocrites, like the apologists for Stalin among the British intelligentsia. Then, of course, there are the ideas on thought-control he expressed in 1984, and the use of distortive, euphemistic language, etc. I certainly would have liked to hear what he’d have to say today, especially on the highly exploitative language from the open-borders movement.
Q. What are some of your favorite books and television shows?
A. Favorite books on the topic of immigration would have to include How Many Is Too Many? by Phil Cafaro. It covers most of the policy arguments for controlling and reducing our intake numbers and in an incredibly thoughtful way. The more cloistered and naïve elements in our society today feel immigration in the West must operate like a global welfare program i.e. the West is rich, so adding to its population increases global wealth, etc. It’s a surprisingly difficult argument to take on, because it’s so impossibly naïve, however, Cafaro refutes it handedly. I haven’t watched TV since the nineties.
[9/1/18: Please see the following update concerning our interview with Mr. Smith]