Border Wall bill contains FOIA exemption for building wall, maintaining border

The revised draft of the Border Security for America Act of 2017 (H.R. 3548), to be considered by the House Homeland Security and Government Affairs Committee as soon as today,  would shield from public scrutiny and accountability ongoing law enforcement activities along the border. The Freedom of Information Act is one of dozens of laws that would not apply to border activities, including construction and maintenance of the border wall and ongoing efforts to stop illegal border crossings.

As Kevin Goldberg writes for the American Society of News Editors (an NMOG member), the impact would be broad:

The public and press would be in the dark with regard to CBP activities near the border. We wouldn’t have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall. The CBP would be able to run wild and without oversight for the most part.”


Two aspects to this proposal are highly problematic.

First, the current legislation, sponsored by House Homeland Security and Government Affairs Committee Chairman Michael McCaul, fails to clearly mark the bill as a proposed exemption to the federal FOIA, as Congress itself required under the OPEN FOIA Act of 2009. That law requires that future proposed exemptions written into law be clearly marked as such by mentioning subsection (b)(3) of FOIA (5 U.S.C. 552), the subsection of FOIA that acknowledges other laws may supersede FOIA’s disclosure requirement.

Second, the legislation would cut out important stories themselves about border enforcement efforts. FOIA can be crucial to covering important stories about immigration, the border and the U.S. Customs and Border Protection (CBP) itself. For example, Philip Bump writing in 2013 for The Atlantic Wire used FOIA to obtain CBP requirements for drones used to patrol the border. His FOIA request showed the CBP’s drone requirements included the capacity to carry “non-lethal weapons designed to immobilize” targets. CBP claimed it had no plans to arm its drones with weapons, but clearly CBP ensured its design requirements allowed CBP to do so. 

In a separate story, in 2010 The Associated Press (a member of our coalition) published a story based in part on FOIA that documented a rise in suicides among border patrol agents.

Border patrol activities continue to be of substantial public interest. Note this story from July 2017 detailing the interaction between border agents and a schoolteacher who refused to answer a question about her citizenship status, or the fact that in September 2017, the American Civil Liberties Union and Electronic Frontier Foundation filed a lawsuit challenging the constitutionality of border searches conducted by CBP and Immigrations and Customs Enforcement (ICE).

Perhaps the bill’s sponsors did not consider or did not intend for the bill to have such ramifications for public oversight of our nation’s borders, but that’s exactly what’s at stake.