by Christine Beckett | Reporters Committee for Freedom of the Press
For the first time, store a federal court has ruled that metadata — information related to the history, tracking or management of an electronic document — must be released if requested under the Freedom of Information Act. A federal judge in New York City made the ruling Monday in National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency.
National Day Laborer Organizing Network requested numerous records in electronic form from the U.S. Immigration and Customs Enforcement Agency. After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata. The court held that this was unacceptable.
The two major issues in this case were the format the records were provided in and the lack of metadata, such as file dates, names, attachment data and other identifying information. Regarding the first issue, the court agreed with the plaintiff’s claim that the format was completely unusable because the more than 3,000 pages were not searchable and not defined — there was no way to discern the beginning and end of individual records. The court repeatedly criticized the government for its refusal to provide the records in a usable form, at one point referring to the government’s claims as “lame.”
Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit, said that metadata is essential when receiving an electronic record. “The metadata shows that the government is not hiding anything when they provide an electronic record. You want to make sure you have everything.” Patel insisted that, without metadata, there is no way for a requester to ensure that key parts of records are not being withheld from an electronic record.
“It goes to the heart of FOIA,” Patel said. “You can’t allow the use of an electronic format to prevent [requesters] from getting information.”
While agreeing that metadata should be specifically asked for, Judge Shira Scheindlin held that because the National Day Laborer Organizing Network asked for the electronic records in their “native format” — meaning in their original electronic format, which maintains metadata — that was sufficient to include the metadata in the request. As a result, the court held that the Immigration and Customs Enforcement Agency must provide the requested records in a usable, electronic format, including the metadata.
“Metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily producible,’” the court held.
Sheindlin also chastised the Immigration and Customs Enforcement Agency for providing the records in an unsearchable format, with different types of records lumped together with no discernable organization, and for providing only PDF images of records that are stored electronically. The court held that these files should be given to the plaintiffs in separate files.
“The Government would not tolerate such a production when it is a receiving party, and it should not be permitted to make such a production when it is a producing party. Thus, it is no longer acceptable for any party, including the government, to produce a significant collection of static images of [electronically stored information],” the court said.
At several points, the court noted that the government also violated discovery rules, which dictate that the record holder cannot alter the form of a record in a way that makes it “more difficult or burdensome for the requesting party to use the information efficiently.” While no court has held that discovery rules govern FOIA, the court said in a footnote that the “fundamental goal underlying both . . . is the same” and “common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation.”
In reaching its conclusion, the court recognized, based on caselaw and legal definitions of metadata, that “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” However, the Freedom of Information Act does not specifically address metadata and “[n]o federal court has yet recognized that metadata is part of a public record,” the court said.
While the court held that there should be a presumption that metadata is producible under FOIA, it conceded that not all metadata may fall under FOIA’s “readily producible” standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency. The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records.
The court, while at times openly scolding the the Immigration and Customs Enforcement Agency’s behavior, did not save its ire entirely for the government. “[O]nce again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which [electronically stored information] would be produced.”
“[L]awyers are all too ready to point the finger at the courts . . . for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations . . . This can only be achieved through cooperation and communication,” the court continued.
It is unclear if the U.S. Attorney will appeal the ruling. When asked, the office said it “does not comment on internal decisions.”
Copyright 2011 The Reporters Committee for Freedom of the Press.
The Herndon Town Council voted 4-3 to pass a revised version of the June 8, 2010 street solicitation ordinance on Tuesday night.
The original street solicitation ordinance, passed last June, prohibited people from soliciting goods and services in public highways, including the grassy strip between the property and the sidewalk, the sidewalk, utility strip, curb and gutter, roadway and median.
The revised version passed last night reduces the enforcement area to the road itself and the median, said Town Attorney Richard Kaufman. The ordinance will no longer apply to sidewalks, utility or grassy strips.
Kaufman said from a legal standpoint he didn’t believe any action by the town council was necessary, however the new ordinance would serve as a legislative decision by the town council. He said from the outset the ordinance was legal, appropriate and defensible.
The new ordinance changes the terminology from highway to roadway, as the two terms have different definitions associated with them, Kaufman said. Another change is that the ordinance applies to all streets equally, including streets with on street parking, though it exempts private streets, he said.
Other changes included taking out language that suggested what enforcers of the ordinance should look as an act of soliciting, and a note addressing that events such as Herndon Festival are allowed because of town permits and are unaffected by the ordinance, Kaufman said.
Councilwoman Grace Wolf asked if it would be allowed for someone to stand in the gutter area of a roadway on the street level, something she found to be dangerous. Town Manager Art Anselene said the interpretation of the ordinance from a policing perspective includes the gutter area where cars may travel.
Before allowing any comments from the audience, Mayor Steve DeBenedittis reminded the crowd that everyone in attendance was an adult and they should act as such and show respect for one another. He said it would also help the meeting move along quicker.
Herndon resident Ruth Tatlock said the town attorney did a good job on the revised ordinance and it was very thorough. She said it left in necessary safety items and she can accept the ordinance as presented.
Lisa Hernandez, of Herndon, said she feels the revised resolution is a good, positive first step but doesn’t cover everything. She said she felt the original ordinance specified and excluded members of the community. She said she would still like to see the ordinance rescinded entirely.
Dennis Baughan said there was nothing controversial about the original ordinance. He said selling items on and near roadways has always been something that’s been regulated, and the enabling legislation was OK’d in the House of Delegates and passed unanimously in the Virginia Senate.
Herndon resident and former town council member Dave Kirby said he has all the faith in the world in the town’s attorney, and that when Kaufman says the ordinance is constitutionally correct he believes him. He said he saw no reason at all to change the ordinance, but believes many were misinformed about what the ordinance really addressed.
Vice Mayor Lisa Merkel made a motion to pass the revised ordinance with a suggestion for a wording change from Kaufman. “It’s been said over and over in these chambers that this council needs to move on from this and I could not agree more,” she said.
Merkel said the issue has been brought up at nearly every public hearing in the past seven months and she wanted to address it now so the council could close the issue for good. She said after Tuesday night she had no plans to address the ordinance, 287(g) or other day labor issues again.
She said she would do what she believed was best for the town, without consideration for individuals or outside groups such as Virginia New Majority, the Alexandria-based organization that rallied residents to petition the town on the original ordinance.
Councilwoman Sheila Olem said she felt the revised ordinance was a compromise. She said she wasn’t happy with the first ordinance when it was passed and felt it was overkill. She said she didn’t think it provided a very “hometown feel” that area groups couldn’t sell Girl Scout cookies on the sidewalk.
Councilman Jasbinder Singh said during the last six months much has been said about the ordinance. He said many people feel discriminated and threatened by the original ordinance and he felt the town took the language too far. He said there is no demonstrated proof that there is a traffic safety issue and the ordinance was simply trying to address the day labor issue.
Councilman Bill Tirrell said he is sick of people throwing out the race card every time there’s a disagreement. He said just because he disagrees doesn’t mean he is a racist, and the day labor and other social issues aren’t relevant to the ordinance. He said he believes VNM has made the ordinance into a day labor issue when that’s not the case.
Tirrell said Herndon is warm and welcoming to residents here legally and they are wanted. He said if residents are here illegally “this should be a cold harbor for you. Go home. This is not your country.” He said they should let their governments care for them the way they want the United States government to care for them.
“No matter how it’s packaged it’s a concession to Virginia New Majority,” Tirrell said. He said no matter how much some council members try to disassociate themselves from VNM, public perception lead by VNM would still claim to control them. He said it’s unfortunate because he doesn’t believe that to be true.
Tirrell said for him the issue is simply about public safety, just like other distractions while driving, such as putting on makeup, eating, texting or talking on a cell phone. “Distraction is distraction no matter how worthy the cause, and distraction can kill,” he said.
Councilwoman Connie Hutchinson said a lot of the evening’s debate was about definitions of roadways, sidewalks, curb and gutter. She said all the definitions can be hard to understand, but suggested an amendment to the ordinance that would include the utility strip between the sidewalk and curb and gutter.
Wolf said if it were up to her she’d ban all activity other than driving on roads and keeping pedestrians on sidewalks, but that’s unconstitutional. She said her biggest interest was in keeping drivers and pedestrians safe. She said she doesn’t care what color someone’s skin is, they shouldn’t be in the roadway.
Hutchinson said just because the town has not had an accident in recent years that involved a pedestrian and a car does not mean there is no potential, and the ordinance is preventative. She said she didn’t support changing the ordinance, but would support including the utility strip as part of the roadway where solicitations would be banned.
The council first voted on the amendment to include the utility strip in the ordinance as a place where solicitations could not take place. The motion failed 3-4.
Mayor DeBenedittis then made a motion to deny the ordinance, which also failed 3-4. The Mayor then made a motion to defer the ordinance to April of 2012, which also failed 3-4. Before a final vote, DeBenedittis commented on his thoughts on the issue.
“The intent of this is and always was public safety,” he said. “We would not be discussing this, we would not have put it on tonight’s agenda if it weren’t for an outside group of agitators who came to our town to divide. And to do so and to get folks out, I believe they had to mislead people. I think it’s a mistake to change this ordinance at this time.”
Finally shortly before 1 a.m., the main motion to pass the revised ordinance, with the amendment suggested by Kaufman was passed 4-3. Tirrell asked for a roll call vote. Voting against the passage of the revised ordinance was Tirrell, Hutchinson and DeBenedittis. Voting for the revised ordinance was Olem, Singh, Wolf and Merkel.
–via Renee Saucedo
Monday Feb 7th, clinic 2011 1:24 PM
On Tuesday, February 8, at 9 am, at 2619 Martin Luther King Jr. Way, in Oakland, dozens of day laborers , domestic workers, and their supporters will picket the private home of a Bay Area contractor who won’t pay the over $6000 owed to the worker under a State Labor Commissioner Order and Award.
CONTACT: Renee Saucedo (415) 425-6575
Jose Cruz worked as a laborer for Il H. Jun, a roofing and general contractor doing business in the Bay Area as Jun’s Associates, Inc. Mr. Cruz filed a claim with the California Labor Commissioner and received an Award for $6,213.11 for unpaid wages, penalties, and interest.
“My employer kept saying he would pay me, but he either didn’t at all, or would pay me with checks that bounced,” states Jose Cruz, a day laborer from Chiapas, Mexico who finds work off of San Francisco street corners.
This picket exemplifies how day laborers and domestic workers, through their workers center, the San Francisco Day Labor Program /Women’s Collective, organize themselves to hold exploitative employers accountable.
“We want to make sure that, despite this climate of hate against undocumented workers, employers get the message that they have to pay us for our work and we must be treated with dignity,” says Jose Ramirez, a day laborer leader with the San Francisco Day Labor Program /Women’s Collective .
La Raza Centro Legal, in San Francisco, represented Mr. Cruz in his wage claim.
Employer’s contact information: Jun’s Associates, Il H. Jun, (510) 830-7749, ilhyunjun [at] gmail.com.
News from from the New Orleans Workers’ Center for Racial Justice: VICTORY FOR ORGANIZED DAY LABORERS AS LOUISIANA OPENS FIRST DAY LABORER CENTER
We live in hard times and the odds seem against us. But it’s still possible to win dignity and respect for day laborers and all immigrant workers through the sheer power of organizing. Across the U.S., day laborer centers are under attack. But on Saturday, January 30, 2011, the City of Gretna, Louisiana, inaugurated a new day laborer center even in the midst of the racist and anti-immigrant sentiment of the region and the nation. The victory was a major reversal of power and a result of over six months of organizing. It was also a lesson that organized workers can inspire a city to act on principles of inclusion, opportunity, and access for all.
In early 2010, the City Council of Gretna proposed an an ordinance that would criminalize day laborers. The Congress of Day Laborers successfully won public opinion:
GRETNA SHOULD NOT BAN DAY LABORERS, editorial, May 19 2010
Six months later, the Congress of Day Laborers turned crisis into opportunity. Not only did we beat back the criminalization ordinance, we negotiated successfully with the Mayor of Gretna to open the first-ever day laborer area in the region, funded by the City, and supported by the police and City Council:
GRETNA DAY WORKERS FIND SAFETY IN DESIGNATED AREA, January 30, 2011
A SAFE SPACE FOR DAY LABORERS (pictures)
In the current political climate, this represents a ray of hope. The day laborer center will be a gathering space and a space to organize. But also represents a broad consensus we were able to organize in Gretna around the idea that strong economies can be based on inclusion, not exclusion — and that public safety means everyone’s safety, including the safety of day laborers. The Mayor of Gretna stood up at the inauguration publicly committed to the Congress of Day Laborers that the center was the beginning of a dialogue, not the end — and he committed to working on police abuse issues and wage theft. The mayor vowed to make Gretna a “model community” in partnership with day laborers.
Thank you to all those who supported this effort!
Through several important initiatives including training programs for immigrants, language education and workers’ rights courses, The Workplace Project works to end the exploitation of Latino immigrant workers.
Founded in 1992 in Hempstead, Long Island, the Workplace Project fights for socioeconomic justice and has strengthened workers rights for Latino immigrants by promoting their full political and economic participation within their communities.
Latino immigrants face many obstacles on Long Island. Aside from the exploitation many of them face on the job, there is also a perception that these workers are responsible for displacing natural citizens from employment.
“This wrong idea that immigrant workers are here to keep the jobs that other people deserve,” said Omar Angel Perez, Executive Director of The Workplace Project, in addressing his goal to fight this misconception.
Training and Outreach
Worker training includes, lessons on taxes and bank accounts, immigration law, discrimination, housing rights, and specialized on the job training.
“Through the Women’s Cooperatives Program, we do outreach to woman who clean households, and we invite them to come, and they get training to do on the job,” said Perez.
Other works include the day laborer program, where workers are educated on how to negotiate a salary, a service contract, and what financial records to keep.
The Workplace Project encourages day laborers and domestic help to join with community members and other immigrants to ensure they are not abused or discriminated against while employed.
“They don’t have the right training to do the job or they don’t get special machines,” said Perez. “We face a lot of problems like injuries and accidents,” he said.
The Workplace Project recruits members by going out into local churches and schools, as well as working with Spanish-speaking media.
“The women’s cooperative member go out and talk to the women on the street, talk to the women outside their workplaces,” said Perez. But they successfully target males as well. “With day laborers, we go directly to the corner and give them flyers, with their permission, about their position and what to do when they have any problem,” he said.
Omar has more to say in the following interview:
Click here to view the embedded video.Legislative Action
The efforts of the Workplace Project have resulted in both local and state legislation to protect all workers, not just immigrants. Members of UNITY, a domestic housecleaning cooperative became strong supporters of legislation and worked to get a law passed in Nassau County. This legislation requires that employment agencies give domestic workers contract forms and notices of their rights, like facts about the minimum wage, overtime regulations and Social Security.
Not satisfied with their local recognition, The Workplace Project pressed on for a statewide law. On August 31, 2010 Governor David Paterson signed the Domestic Worker Bill of Rights
This law will provide the same rights to domestic workers as are provided to other workers in New York State. The bill became law on November 29, 2010.
“The next step is to be sure that these laws are going to be implemented,” said Perez. The group is on a six year campaign seeking enforcement of this law and to ensure that the law also covers other groups, such as day laborers and low- wage workers.
“We’re not just talking about immigrant workers,” Perez said. “We’re talking about protection for all workers of the state.”
Their message to lawmakers is simple: the repression of day laborers and other domestic assistants seeking employment is counterproductive. They cite a Hofstra University Study, conducted in conjunction with Long Island Day Laborers, indicating an increase in human rights violations.
“If we can get more protection for low-wage workers, it will help increase wages for all the workers,” said Perez.
His group is also trying to ensure that those who employ immigrants will follow the new laws.
“We have been in touch with some employers who are good employers and they follow the rules, they follow the law, and they know that workers, immigrants or not, deserve good wages.”
Perez knows The Workplace Project will be a vital link between the economy and those who perform many of its necessary services.
“The immigrant community contributes a lot to the Long Island economy, and without the immigrant community and this labor force, the economy on Long Island could fall,” said Perez.
Empowering and protecting immigrant worker rights remains an ongoing goal for Perez, but so too is fighting the perception that immigrants somehow threaten the Long Island livelihood.
“We want Long Islanders to understand that the immigrant community is part of the larger community of Long Island, he said. ”
Reporter: Phil Hecken
Additional Reporting: Christal Roberts
Copy Editor: Amanda Thurshwell
Video: Bob Doda
It made an ordinance, specifically forbidding day laborers from finding jobs. The law was nothing more than an ugly and xenophobic attempt to get rid of the Latinos on the sidewalk looking for work. A Fairfax County judge rightly struck it down as unconstitutional.
Herdon did not learn its lesson. At a time when unemployment is soaring through the roof, Herndon would rather prevent people from finding jobs and making ends meet. The outgoing city council moved to enact a broader ordinance, banning all solicitation on streets and sidewalks. The result? Now cheerleaders, non-profit fundraisers by community groups, and panhandlers are banned from soliciting money, too.
The law continues to quash free speech with the sole intent of discriminating against mostly Latino laborers seeking day-to-day employment. Indeed, the original draft of the ordinance proposed to “eliminate the visual blight of Latino workers.” This has not set well with some Herndon residents who complain that the measure is anti-immigrant and has nothing to do with the public safety concerns raised by its proponents.
Virginia New Majority and the National Day Laborer National Network (NDLON) are some of the organizations working on rescinding the bill. The organizations have already threatened to file suit against the city if it does not amend or abolish the ordinance.
The incoming city council is open to reviewing and amending the bill so that it passes constitutional muster in a court of law. Restore sanity in Herndon. Ask the City Council to end the restrictions against day laborers.
Prerna Lal is co-founder and Online Coordinator of DreamActivist and a board member of Immigration Equality. She is currently attending George Washington University Law School.
Dreams, community and giving back are all things that came to mind for the workers at the Day Worker Center of Mountain View on Martin Luther King, Jr. Day yesterday.
Escuela Avenue and Castro Street became two of the major areas the workers canvassed as they picked up litter on Jan. 17, 2011, the 25th anniversary of the national holiday that Congress designated a national day of service in 1994.
Outside of the center, people slowly gathered to support the effort of the laborers.
Doug Albercht, a Mountain View resident, said he had the day off work and wanted to help the center’s efforts.
“I like to volunteer now and then,” Albercht said. “I learned about community service programs around the world through a church group and this was something nearby I could do.”
The Day Worker Center of Mountain View, located at 113 Escuela Avenue, provides the day laborer community in Mountain View and surrounding cities a place to find work and gain skills, such as English classes, CPR and First Aid training, computer classes and more, according to Executive Director María Marroquín.
“The workers, even though they don’t have a lot of material to give, they want to give back with themselves,” she said.
The center has cleaned up litter in Mountain View on the holiday for the last three years and gives back throughout the year, according to Marroquín. They also help with the community garden on Escuela Avenue, donate blood, assemble desks at Mountain View schools among other things.
“We can say we’re ‘on call’ for the community,” said Marroquín with a smile.
On Monday, about 20 of the center’s members volunteered and some brought their children to help.
Alma Cruz, 15, a sophomore at Gunn High School studied for her finals before the trash-pickup began. Her mom had been successfully placed with a job through the center that lasted a few months but now has begun to look for work again every day.
“I’m volunteering because I think it’s important to help the community just like they’re helping us maintain and keep this center,” Cruz said.
The center has been housed at several different locations; the most recent was a church on Mercy Street. The center moved to its Escuela Avenue home in November.
“After 14 years, we have our own home now,” said Marroquín.
The center sees about 80-90 laborers each day, which gets placed on a list and gains work based on that list. Each worker finds work an average of once a week at a job site but often get more work in the warmer months, explained Marroquín. Employers seek help for anything from construction and gardening to cleaning and babysitting.
Nine years ago before he came to the center, Jose Vega looked for work outside on El Camino Real and San Antonio Road.
Now, he comes to the center every day where he gets “protection from the cold” and “follows rules” that look good to employers.
Vega volunteered out on the streets yesterday.
“We try to make the city look nice. We want the people to see the difference,” he said. “The city gives us permits and help to stay here. This is very, very good.”
(Source: Mountain View Patch)
“They call me KKK, I consider it an honor. It means we’re doing something,” are the startling words of Sheriff Arpaio, the top law enforcer of Maricopa County, Arizona. Unlike radio hosts or other public officials who lose their posts instantly when uttering similar remarks, Arpaio’s position has won five elections and received continuous
On one hand, President Obama took the politically courageous (if not constitutionally obligatory) step to file suit in Arizona against SB 1070. On other hand, he has massively ramped up the very policies which created the political conditions for 1070’s passage in the first place. Most significantly, he has failed to reign in Joe Arpaio — a