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  • 8/7/2019 FOIA Request: CREW: Department of Homeland Security: Regarding Interference with FOIA Review: 2/10/11 FOIA D

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    CREW Icitizens for responsibilityand ethics in washingtonFebruary 10, 2011

    By Facsimile (703-235-0442) and email ([email protected])Director, Disclosure and FOIAPrivacy OfficeU.S. Department of Homeland Security245 Murray Drive SW, Building 410STOP-655Washington, D.C. 20528-0655

    Re: Expedited Freedom of Information Act RequestDear Sir/Madam :

    Citizens for Responsibility and Ethics in Washington ("CREW") makes this request forrecords , regardless of format , medium, or physical characteristics, and including electronicrecords and information, audiotapes, videotapes and photographs, pursuant to the Freedom ofInformation Act ("FOIA"), 5 U.S.c. 552, et seq., and U.S . Department of Homeland Security("DHS") regulations, 6 C.F.R. Chapter 1 and Part 5.

    Specifically, CREW seeks any and all records of communications among and betweenRep. Darrell E. Issa and/or anyone acting on behalf of Rep. Issa or the House ofRepresentativesCommittee on Oversight and Government Reform ("Oversight Committee") , Rep. Issa 'spersonal staff, any staff of, and any investigators internal or external to the Oversight Committeeincluding but not l imited to Robert Borden, Larry Brady, Steve Castor, Ashok Pinto, MatthewTallmer, and/or Peter Warren and: (1) any employee of the DHS Privacy Office including, butnot limited to, William H. Holzerland, Catherine M. Papoi, and/or Vania T. Lockett.

    CREW also seeks any and all records of communications among and between DHS 'Office ofInspector General and Rep . Issa, Rep. Elijah E. Cummings, and/or anyone acting onbehalf of Rep. Issa and/or Rep. Cummings.

    Please search for responsive reco rds regardless of format, medium, or physicalcharacteristics. Where possible, please produce records electronically, in PDF or TIF format on aCD-ROM. We seek records of any kind, including electronic records, audiotapes, videotapes ,and photographs. Our request includes any letters, emails, facsimil es, telephone messages, voicemail messages, and transcripts, notes, or minutes of any meetings, telephone conversations, ordiscussions. Our request also includes any attachments to these records.

    1400 EyeStree t, N.W. , Suite 450,Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020fax I www .citizensforethics.

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    Director, Disclosure and FOIAFebruary 10,2011Page Two

    If it is your position that any portion of the requested records is exempt fromdisclosure, CREW requests that you provide it with an index of those documents as requiredunder Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). Asyou are aware, a Vaughn index must describe each document claimed as exempt with sufficientspecificity "to permit a reasoned judgment as to whether the material is actually exempt underFOIA." Founding Church ofScientology v. Bell, 603 F.2d 945,949 (D.C. Cir. 1979). Moreover,the Vaughn index must "describe each document or portion thereof withheld, and for eachwithholding it must discuss the consequences of supplying the sought-after information." King v.Us. Dep 't ofJustice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis added). Further, "thewithholding agency must supply'a relatively detailed justification, specifically identifying thereasons why a particular exemption is relevant and correlating those claims with the particularpart of a withheld document to which they apply.'" Id. at 224 (citing Mead Data Central v. us.Dep 't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).

    In the event some portions of the requested records are properly exempt from disclosure,please disclose any reasonably segregable non-exempt portions of the requested records. See 5U.S.C. 552(b). If it is your position that a document contains non-exempt segments, but thatthose non-exempt segments are so dispersed throughout the document as to make segregationimpossible, please state what portion of the document is non-exempt, and how the material isdispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims ofnonsegregability must be made with the same degree of detail as required for claims ofexemptions in a Vaughn index. If a request is denied in whole, please state specifically that it isnot reasonable to segregate portions of the record for release.

    Fee Waiver RequestIn accordance with 5 U.S.c. 552(a)(4)(A)(iii) and 6 C.F.R. 5.11, CREW requests awaiver of fees associated with processing this request for records. The subject of this request

    concerns the operations of the federal government and the disclosures likely will contribute to abetter understanding of relevant government procedures by CREW and the general public in asignificant way. Moreover, the request is primarily and fundamentally for non-commercialpurposes. 5 U.S.C. 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d1282,1285 (9thCir. 1987).

    These records are likely to contribute to greater public awareness ofDHS's FOIA reviewpolicies and practices and the truthfulness of the allegation that political appointees at DHS haveinterfered with the FOIA review process at DHS. This issue currently is the subject of aninvestigation by Rep. Issa as chairman of the House Oversight Committee based on his claim thatan unnamed individual has provided him with information "that top DHS officials were involvedin restricting information released under FOIA requests." Jake Sherman, Issa Battles DHS OverFOIA Requests, Politico, February 2, 2011 (enclosed as Exhibit A). Rep. Issa together with Sen.

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    Director, Disclosure and FOIAFebruary 10,2011Page ThreeCharles Grassley began in investigation of this issue last August when the two sent letters to 29government agency inspectors general, including DHS's inspector general. Reportedly DHSdenied any inappropriate meddling by political-level officials, yet Rep. Issa is continuing to pressthe issue based on undisclosed information from a so-called "whistleblower." Sherman, Politico,Feb. 2, 2011.

    The requested documents would shed light on this issue and the truthfulness of theallegation that certain DHS officials have politicized FOIA processing at the agency byimproperly interfering with and delaying agency responses to FOIA requesters. In addition, therequested documents would bring transparency to a process that to date has been shrouded insecrecy based on unidentified information from unnamed individuals that, accordingly, threatensto undermine public confidence in DHS's administration of its duties under the FOIA.

    CREW is a non-profit corporation, organized under section 501(c)(3) of the InternalRevenue Code. CREW is committed to protecting the public's right to be aware of the activitiesof government officials and to ensuring the integrity of those officials. CREW uses acombination of research, litigation, and advocacy to advance its mission. The release ofinformation garnered through this request is not in CREW's financial interest. CREW willanalyze the information responsive to this request, and will share its analysis with the public,either through memoranda, reports, or press releases. In addition, CREWwill disseminate anydocuments it acquires from this request to the public through its website,www.citizensforethics.org, which also includes links to thousands of pages of documents CREWacquired through its multiple FOIA requests as well as documents related to CREW's litigationand agency complaints, and through www.scribd.com.

    Under these circumstances, CREW satisfies fully the criteria for a fee waiver.News Media Fee Waiver Reguest

    CREW also asks that it not be charged search or review fees for this request becauseCREW qualifies as a "representative of the news media" pursuant to the FOIA and DHSregulation 6 C.F.R. 5.11. In Nat 'ISec. Archive v. Us. Dep 't ofDefense, 880 F.2d 1381, 1386(D.C. Cir. 1989), the Court of Appeals for the District ofColumbia Circuit found the NationalSecurity Archive was a representative of the news media under the FOIA, relying on the FOIA'slegislative history, which indicates the phrase "representative of the news media" is to beinterpreted broadly; "it is critical that the phrase 'representative of the news media' be broadlyinterpreted if the act is to work as expected.... In fact, any person or organization whichregularly publishes or disseminates information to the public . . . should qualify for waivers as a'representative of the news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30,1986) (emphasisadded), cited in id.

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    Director, Disclosure and FOIAFebruary 10,2011Page Four

    CREW routinely and systematically disseminates information to the public in severalways. First, CREW maintains a frequently visited website, www.citizensforethics.org, thatreceived 53,145 page views in January 2011. In addition, CREW posts all of the documents itreceives under the FOIA on www.scribd.com. and that site has received 607,799 visits toCREW's documents since April 14, 2010.

    Second, since May 2007 CREW has published an online newsletter, CREWCuts, thatcurrently has 16,960 subscribers. CREWCuts provides subscribers with regular updatesregarding CREW's activities and information the organization has received from governmententities. A complete archive of past CREWCuts is available athttp://www.citizensforethics.org/newsletter.

    Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics inWashington, that reports on and analyzes newsworthy developments regarding government ethicsand corruption. The blog, located at http://www.citiznesforethics.org/blog, also provides linksthat direct readers to other news articles and commentary on these issues. CREW's blog had4,045 page views in January 2011.

    Finally, CREW has published numerous reports to educate the public about governmentethics and corruption. See The Revolving Door, a comprehensive look into the post-governmentactivities of24 former members of President Bush's cabinet; Record Chaos, which examinesagency compliance with electronic record keeping responsibilities; and Those Who Dared: 30Officials Who Stood Up For Our Country. These and all other CREW's reports are available athttp://www.citizensforethics.org/reports.

    Based on these extensive publication activities, CREW qualifies for a fee waiver as a"representative of the news media" under the FOIA and agency regulations.

    Request for ExpeditionPursuant to 5 U.S.C. 552(a)(6)(E)(i) and 6 C.F.R. 5.5, CREW requests that DHS

    expedite the processing of this request in light of the compelling need for the public to haveaccess to the requested information. As explained above, CREW is engaged primarily in thedissemination of information it gathers from a variety of sources, including the FOIA, and seeksthe information requested here for the express purpose of disseminating it to the public.CREW's website and www.scribd.com contain links to thousands of pages of documents CREWacquired from multiple FOIA requests, as well as documents related to CREW's FOIA litigationand other complaints.

    Here there is a compelling need to inform the public about the truthfulness behindallegations that DHS's processing ofFOIA requests has been compromised by interference from

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    Director , Disclosure and FOIAFebruary 10,2011Page Fivepolitical appointees. The public also needs this information to judge the legitimacy of theongoing congressional investigation into this matter, despite DHS 's denials. The lack of fulldisclosure and transparency surrounding this controversy undermines public confidence in bothDHS and Congress, and distracts DHS from attending to the already pressing demand to processFOIA requests and reduce its backlog. Release of the requested documents will answer questionsas to whether DHS 's FOIA processing has been subject to political interference.

    Under these circumstances, CREW clearly meets the requirements for expedition set outin the FOIA and DHS regulations.Pursuant to C.F.R. 5.5(d)(3), the undersigned hereby certifies that the basis for thisrequest for expedition is true and correct to the best of her knowledge and belief.

    Conclusion

    If you have any questions about this request or foresee any problems in releasing fully therequested records please contact me at (202) 408-5565. Also, if either CREW's request for a feewaiver or its request for expedition is not granted in full, please contact our office immediatelyupon making such a determination. Please send the requested records to Anne 1. Weismann,Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W. , Suite 450,Washington, D.C. 20005 .Sincerely,

    Anne 1. WeismannChief CounselEnclosure

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    EXHIBIT A

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    Issa battles DHS over FOIA requests - POLITICO.com Print View Page 1 of3

    Issa battles DHS over FOIArequestsBy: Jake ShermanFebruary 2, 2011 04:34 PM ESTDarrell Issa has picked his first real fightwith the Obama administration, accusingthe Department of Homeland Security ofletting political appointees interfere withfreedom of information requests.Issa is claiming that he has informationfrom an unnamed whistleblower that topDHS officials were involved in restrictinginformation released under FOIA requests.DHS officials say it is extremely rare foranyone outside the FOIA department to beinvolved to such requests - and when theydo, they do not restrict the data that'sbeing released.While Issa battles with bureaucrats, thisfirst investigation could be more significantthan just a skirmish over FOIA practices.Through the media and publicappearances, Issa has tried to turn backthe notion that he is on a witch-hunt forBarack Obama, but is rather interested inreal oversight of the federal bureaucracy.This investigation shows Obama will nevertruly be divorced from these investigations.For starters, Issa is demanding all emailsbetween the White House and DHS inregards to FOIA - a trove that could includereams of emails between a sensitivenational security agency and topadministration officials.He's also accusing the department ofdefying the president's goals when itcomes to ooenness. He said that DHS's

    decision to involve a general counsel in hisinvestigation "raises questions about thedepartment's commitment to thepresident's effort to create 'anunprecedented level of openness ingovernment. II IIn the next paragraph of a letter sent toNapolitano Tuesday, Issa sought to remind

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    Issa battles DHS over FOIA requests - POLITICO.com Print View Page 2 of3

    the secretary of an Obama quote in amemorandum about the Freedom ofInformation Act, where the president laudsthe law as encouraging "accountabilitythrough transparency," calling it the "mostprominent expression of a profoundnational commitment to ensuring an opengovernment."DHS aides declined, even on background,to discuss if they thought there werepolitical motivations for the investigation.Matthew Chandler, a spokesman for DHS,said the agency would cooperate with Issa's investigation."We will continue to cooperate withChairman Issa and provide informationresponsive to his requests," Chandler said."Our record is clear: under thisadministration, the Department hasreduced the FOIA backlog by 84 percent,released over 138,000 FOIA requests inthe past year, the most of any federalagency, and substantially reduced theamount of time it takes to process FOIArequests."Committee Democrats said Issa's aideshave not invited them to be a part of thisinvestigation.Issa, in his request for documents, refers toa law that says that individuals may not"arbitrarily or capriciously" withholdinformation through FOIA. DHS aides saythat's not happening.The FOIA dispute has its roots in anAssociated Press story from 2010, when

    the wire reported that the department wassending FOIA requests through politicalappointees on a wide range of issues. TheAP story said that lawmakers who filedFOIA requests were being identified byparty, and the process of kicking requeststo more senior officials delayed the releasetime of many requests.Advertisement

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    Issa battles DHS over FOIA requests - POLITICO.com Print View

    Republicans say that Mary Ellen Callahan,the department's chief privacy officer, toldIssa's staff that there was no inappropriatemeddling by political agents - but awhistleblower later gave Republicancommittee staff information thatundermined that claim, a committee aidesaid.

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    But instead of asking Napolitano to testify a tact that would certainly provide the GOPwith the Issa versus Obama drama thatmany in D.C. crave - Issa is going aftersmaller fish. He has asked Napolitano'schief of staff, deputy chief of staff, the chiefof staff to the general counsel, Callahanand top FOIA officials to speak to thecommittee behind closed doors on CapitolHill. DHS aides would not comment onwhether those aides would be madeavailable for interviews.As DHS sought to brush back on Issa'sclaim, they've taken to a tried-and-trueDemocratic tactic: blaming the Bushadministration."Really what this broke down to is the FOIAoffice here had the biggest backlog ingovernment," a DHS aide said.Shortcuts To Links In Article

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