The following information is from the National Police Association

The National Police Association (NPA) is suing the Biden Administration over documentation that will illustrate and prove that accusations made against Border Patrol agents for allegedly “whipping migrants” was false and known by the federal agencies – Department of Homeland Security (DHS) and Customs and Border Protection (CBP).

The NPA filed the lawsuit after DHS and CBP failed to reply to its Feb. 22, 2022, Freedom of Information Act (FOIA) request for the documentation.

The lawsuit pertains to the following incident, as per the NPA:

On September 19, 2021, mounted Border Patrol agents conducting routine protection duties were photographed intercepting illegal aliens attempting to cross into the United States. Some of those photographs captured the agents using their reins in a twirling motion to direct the horses and to keep the migrants at a distance. Some photos showed the agents taking hold of the migrants to push them away from the horses to protect the migrants from being stepped on.

Upon publication of the photos, the agents were falsely accused of “whipping” the migrants. This despite the freelance reporter who took the photos stating no such thing happened. The official investigation came immediately. It was followed just as quickly with false and defamatory attacks against the reputations of the agents from the highest levels of government.

The NPA’s FOIA request is for the purpose of disclosing communications which prove the Administration knew or should have known that their accusations against the Board Patrol agents were false when made or immediately thereafter.

Despite the Administration knowing their accusations against the Board Patrol agents were false no apologies have been forthcoming and the agents have remained on administrative duty pending the results of the investigation which must have cleared them months ago.

NPA spokesperson Sgt. Betsy Brantner Smith (Ret.) said “Recent media reports indicate the Administration is planning to charge the agents with “administrative violations” to save face and prevent the need to admit the whipping accusations were false, defamatory, and unconscionable.

We believe our lawsuit will result in DHS and CBP conforming to the law and handing over the communications and documents that prove the Administration knew their accusations against these agents were false and took no corrective action.

The NPA complaint can be viewed below and here.

COMPLAINT

1. Plaintiff National Police Association (“NPA” or “Plaintiff”) brings this Freedom of Information Act judicial review against Defendant United States Department of Homeland Security (“DHS”) and Defendant Customs and Border Protection (“CBP”) (collectively “Defendants”) to compel Defendants to produce responsive records relating to an alleged “whipping” of migrants by Border Protection agents on September 19, 2021. Defendants have violated the Freedom of Information Act by failing to issue a determination within the statutory period, by failing to conduct a reasonable search, and by failing to produce the responsive, non- exempt records.

Civil Action No. 22-1724

Case 1:22-cv-01724 Document 1 Filed 06/15/22 Page 2 of 6

PARTIES

2. Plaintiff NPA is a nonprofit organization registered in Indiana with a principal place of business in Indiana. NPA made a FOIA request on February 22, 2022 to DHS.

3. Defendant DHS is a federal agency subject to the Freedom of Information Act, 5 U.S.C. § 552. Defendant CBP is a federal agency subject to the Freedom of Information Act, Id.

JURISDICTION AND VENUE

4. This case is brought under 5 U.S.C. § 552(a)(4)(B) and presents a federal question which confers jurisdiction on this Court. See 28 U.S.C. § 1331.

5. The venue is proper under 5 U.S.C. § 552(a)(4)(B).

PLAINTIFF’S FEBRUARY 22, 2022 FOIA REQUEST

6. On February 22, 2022, Plaintiff made a request to the U.S. Department of Homeland Security (DHS) for the following:

1) all records depicting or describing the findings of the “investigative work” done by U.S. Customs and Border Protection’s Office of Professional Responsibility on the September 19, 2021 incident. For purposes of this numberedrequest and for all that follow the term “the September 19, 2021 incident” means “Allegations made against or about United States Customs and Border Protection (CBP) agents “whipping” or otherwise engaging migrants attempting to cross into the United States in or near the Rio Grande River near Del Rio, Texas during the migrants’ encounter with CBP agents on September 19, 2021. Photographs of this encounter were taken by El Paso freelance journalist Paul Ratje.”

2) all records depicting or describing the conclusions of the “investigative work” done by U.S. Customs and Border Protection’s (CPB) Office of Professional Responsibility on “the September 19, 2021 incident” as described above.

3) all records depicting or describing the analysis of the “investigative work” done by U.S. Customs and Border Protection’s Office of Professional Responsibility on “the September 19, 2021 incident” as described above.

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4) all records of communications between the Office of the Secretary of the Department of Homeland Security and the White House referring to “the September 19, 2021 incident” as described above.

5) all records of communications between the Office of the Secretary of the Department of Homeland Security and the media referring to “the September 19, 2021 incident” as described above.

6) all records, including emails, texts and other communications from the White House staff to the Secretary of Homeland Security Alejandro Mayorkas or his staff mentioning or referring to “the September 19, 2021 incident” as described above.

7) all records, including emails, texts and other communications from the Secretary of Homeland Security Alejandro Mayorkas or his staff to the White House mentioning or referring to “the September 19, 2021 incident” as describedabove.

8) all records, including emails, texts and other communications from the Secretary of Homeland Security Alejandro Mayorkas or his staff to the Office of the Inspector General mentioning or referring to “the September 19, 2021 incident” as described above.

Ex. 1.
7. The request seeks records from September 18, 2021, to the present. Id.
8. DHS acknowledged receipt of the request on February 28, 2022 and assigned

reference number 2022-HQFO-00720. Ex. 2. DHS’s acknowledgement transferred the parts of the request regarding “investigative work” to CBP. Id.

9. CBP acknowledged receipt of the transfer on March 28, 2022. Ex. 3. It assigned tracking number CBP-2022-058909. Id.

10. CBP subsequently changed the tracking number to CBP-OC-2022-058909. Ex. 4.

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11. Plaintiff sought an update on CBP’s online portal which listed the “estimated completion date” for the FOIA request as April 25, 2022. Ex. 5.

12. On June 1, 2022, Plaintiff, after noting that the Estimated Completion Date (ECD) supra was obviously incorrect, sent CBP an ECD request. Ex. 6.

13. This ECD request was received by CBP on June 6, 2022. Ex. 7.
14. Plaintiff also sent DHS an ECD request via email on May 23, 2022. Ex. 8. 15. At the timing of filing, Defendants have not responded to Plaintiff’s ECD

requests.
16. As of the date of this filing, Defendants have not complied with FOIA, have not

responded to ECD requests, have not issued a determination, and have produced no records responsive to Plaintiff’s request.

COUNT I – DEFENDANT’S FAILURE TO ISSUE A DETERMINATION WITHIN THE STATUTORY PERIOD

17. The above paragraphs are incorporated by reference.

18. The request seeks the disclosure of agency records and was properly made.
19. Defendants are federal agencies subject to FOIA.
20. Included within the scope of the request are one or more records or portions thereof that

are not exempt under FOIA.
21. Defendants have failed to issue a determination within the statutory deadline.

COUNT II – DEFENDANT’S FAILURE TO CONDUCT A REASONABLE SEARCH

22. The above paragraphs are incorporated by reference.
23. The request seeks the disclosure of agency records and was properly made. 24. Defendants are federal agencies subject to FOIA.

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25. Defendants have failed to conduct a reasonable search for records responsive to the request.

COUNT III – DEFENDANT’S FAILURE TO PRODUCE RECORDS

26. The above paragraphs are incorporated by reference.
27. The request seeks the disclosure of agency records and was properly made.
28. Defendants are federal agencies subject to FOIA.
29. Included within the scope of the request is one or more records or portions thereof that

are not exempt under FOIA.
30. Defendants have failed to produce records responsive to the request.

COUNT IV – DEFENDANT’S FAILURE TO PROVIDE ESTIMATED COMPLETION DATES

31. The above paragraphs are incorporated by reference.
32. The request seeks the disclosure of agency records and was properly made. 33. Defendants are federal agencies subject to FOIA.
34. Defendants have failed to provide an ECD upon request.

WHEREFORE, NPA asks the Court to:
i. declare that Defendants violated FOIA;

ii. order Defendants to conduct a reasonable search for records;
iii. order Defendants to issue determinations;
iv. order Defendants to promptly produce all non-exempt responsive records or portions of

records;
v. enjoin Defendants from withholding non-exempt public records under FOIA;

vi. order Defendants to provide Estimated Completion Dates; vii. award NPA attorneys’ fees and costs; and,

Dated: June 15, 2022

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viii. award such other relief the Court considers appropriate.

RESPECTFULLY SUBMITTED,

/s/ C. Peter Sorenson
Attorney for Plaintiff
C. Peter Sorenson, DC Bar #438089 Sorenson Law Office
PO Box 10836
Eugene, OR 97440
(541) 606-9173 [email protected]

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