responsive documents: crew: department of homeland security: regarding interference with foia...

8/7/2019 Responsive Documents: CREW: Department of Homeland Security: Regarding Interference with FOIA Review: 5/3/1

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March 18,2011

Anne L. WeismannChief CounselCitizens for Responsibility and Ethics in Washington1400 Eye Street N.W., Suite 450Washington, D.C. 20005Re: DHS/OSIPRIV 11-0423Dear Ms. Weismann:

Office a/the General CounselU.S.Department of Homeland SecurityWashington. DC 20528HomelandSecurity

This is the final response to your Freedom of Information Act (FOIA) request to the DepartmentofHomeland Security (DHS) Privacy Office dated February 10. 2011, seeking any and allrecords of communications among and between Rep. Darrell E. Issa and/or anyone acting onbehalf ofRep. Issa or the House ofRepresentatives Committee on Oversight and GovernmentReform (Oversight Committee), Rep. Issa's personal staff, any staffof, and any investigatorsinternal or external to the Oversight Committee including but not limited to Robert Borden,Larry Brady, Steve Castor, Ashok Pinto, Matthew Tallmer, and/or Peter Warren and: (1) anyemployee of the DHS Privacy Office including but not limited to the undersigned, Catherine M.Papoi, and/or Vania Lockett. The Privacy Office transferred this case to us, DHS Office of theGeneral Counsel (OGC) for processing and direct response to you. Your request was received inthis office on February 23,2011.A search ofDHS Privacy Office for documents responsive to your request produced a total of61 pages. As a result of discussion between agency personnel and my staff, as a matter ofadministrative discretion, I am releasing 24 pages in full. I have determined that 24 pages of therecords are releasable in their entirety, and 37 pages are withheld in their entirety pursuant toTitle 5 U.S.C. 552 FOIA Exemption (b)(5).FOIA Exemption (b)(5) protects the integrity of the deliberative or policy-making processeswithin the agency by exempting from mandatory disclosure opinion, conclusions, andrecommendations included within inter-agency or intra-agency memoranda or letters.Example of information the Department ofHomeland Security may withhold using 5: Draftdocuments and recommendations or other documents that reflect the personal opinion of theauthor rather than official agency position.You have a right to appeal the above withholding determination. Should you wish to do so, youmust send your appeal and a copy of this letter, within 60 days of the date of this letter, to:Associate General Counsel (General Law), U.S. Department ofHomeland Security, Washington,D.C. 20528, following the procedures outlined in the DHS regulations at 6 C.F.R. 5.9. Yourenvelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulationsare available at www.dhs.gov/foia.

www.dhs.gov


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The Office ofGovernment Information Services (OOIS) also mediates disputes between FOIArequesters and Federal agencies as a non-exclusive alternative to litigation. If you are requestingaccess to your own records (which is considered a Privacy Act request), you should know thatOOIS does not have the authority to handle requests made under the Privacy Act of 1974. If youwish to contact OOIS, you may email them at ogisrmnara.gov or call 1-877-684-6448.If you need to contact our office again about this matter, please refer to PRIV 11-0423. Thisoffice can be reached at 202-357-7672.

Sincerely,~ ( FOIA Officer, DHS DOC

Enclosure: Responsive Documents, 24 pages


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LS . Department of Homeland SecurityWashington,DC20528

HomelandSecurityApril 26, 2010

The Honorable Darrell IssaUnited States House ofRepresentativesRanking MemberCommittee on Oversight and Government Reform2157 Rayburn House Office BuildingWashington, D.C. 20515-6143The Honorable Patrick McHenryUnited States House ofRepresentativesRanking MemberCommittee on Oversight and Government ReformSubcommittee on Information Policy, Census, and National Archives2157 Rayburn House Office BuildingWashington, D.C. 20515-6143

Re: Freedom of Information Act TransparencyDear Rep. Issa and Rep. McHenry:This is in response to your letter of March 25, 2010, regarding Freedom of Information Act (FOIA)transparency at the U.S. Department ofHomeland Security (DHS). Secretary Napolitano has askedme to respond to your inquiry directly.It is my duty to ensure the DHS embraces the Administration's presumption of openness andtransparency. We take those responsibilities quite seriously. My office, the DHS FOIA Office, isactively implementing sweeping policy changes in support of transparency and open government.Our disclosure program has instituted definitive measures to mandate proactive record posting, adoptthe "foreseeable harm" standard, and reduce the DHS request backlog. Furthermore, as noted in theNational Security Archives (NSA) audit you cite in your letter, we have also instituted new trainingassociated with the open government and transparency initiatives.DHS began its operations with a large, inherited FOIA backlog due to the pre-existing agencybacklogs. Additionally, when the new department stood up, it generated a flood of requests becauseof its status and mission. The result was a 98,396-request backlog at the end of FY 2006 - the largestfederal FOIA backlog in history. Despite resource constraints, and the fact that from 2006 to 2009,the number of total requests to the Department held relatively constant, in the last three years DHS


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reduced its backlogbyover 80%. At the endof FY 2009,thebacklogwas 18,787. AsofMarch2010, theDHS-wide backlogwas 11,850.This incredible result is due to theongoing dedication of theDHSFOIA professionals. During FY2009alone, DHS FOIAstaff processed 160,007 FOIA requests. To support the backlog eliminationeffort, weareworkingwith component leadership to ensure the Department'scomponents devoteadequate resources to their FOIAprograms.

Weappreciate your interest in theDHS FOIA process. Given the volume of information yourequested - and the numberof FOIA requests DHS processes eachyear - weprovidethe followingdetailed and summary information in response to your inquiry. Shouldyouwantmoredetailedinformation on anyof the topics. pleaselet us know.

1. The DHS Headquarters' andDHS components' historical FOIA logs forCY2009areavailable online at www.dhs.gov/foia. I2. Detailed statistics concerning thegranting and denial of all FOIA requests processedduringeach fiscal year is available inourAnnual FOIA Report to the Attorney General o ftheUnited States. TheAnnual FOIA Reports for FY2003-FY 2009 areavailableonline atwww.dhs.gov/foia. 2 Acopyof the 2009Annual FOIA Report is attachedforyourreference.TheNSA audit noted thatDHS has increased releases in full by 46.2 percent and increasedpartial releasesby 73.2 despitehaving complex requests seekingnational security, homelandsecurity and lawenforcementsensitive information. Additionally, NSAnotesthatDHS isnot one of the ten departments withthe oldestpending FOIA requests.3. Detailed information regarding the 160,007 requests processed in FY09 is available in theattached 2009Annual FOIA Report.4. Detailed information concerning the Department's efforts to complywithPresident ObamaandAttorney GeneralHolder's policymemoranda is included in the first ever2010DHSChiefFOIA Officer Report, also available onlineat www.dhs.gov/loia.3 Furthermore, Iissued a Department-wide memorandum givinga FOIA overviewinMay2009,4 a

I CY09 DHS and component FOIA logs: http://www.dhs.gov/xfoialeditorial 0424.shtm2 FY09Annual FOIA Report: http://www.dhs.gov/xlibrarytassets/foialpriv8cy rot foia 2009.pdf) 2010 ChiefFOIA Officer Report to the Attorney General ofthe United States:http://www.dhs.gov/xlibrary/assets/foialpriv chief foia officer report cyIO.pdf4 Chief FOIA Officer's Memorandum: FOIA Overview, May 28,2009:http://www.dhs.gov/xlibrary/assets/foialfoia overview of the freedom of infornlation act.pdf


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memorandum outlining the DHS policy of proactive disclosure in August 20095 and areminder reiterating the importance ofFOIA and transparency during Sunshine Week 2010,on March 16,2010.6 A copy of the 2010 DHS ChiefFOIA Officer Report, as well as copiesof the aforementioned memoranda, are attached for your reference.

I am proud ofwhat the Department ofHomeland Security has accomplished in making itselfmoreopen and accountable to the public and look forward to making great strides in the future to helpPresident Obama recognize his vision for an unprecedentedly open and responsive government. Ifwe may be of further assistance, please contact Assistant Secretary for Legislative Affairs, ChaniWiggins, at (202) 447-5890.

Sincerely,

Mary ElIenCalIahanChief FOIAOfficer

Attachments: as stated

SChiefFOIA Officer's Memorandum: Proactive Disclosure, AuguSl26, 2009:http://www.dhs.gov/xlibrary/assets/foia/foia proactive disclosure.pdf6 ChiefFOIA Officer's Memorandum: Freedom of Information Act and Sunshine Week, March 16,2010:http://www.dhs.gov/xlibrary/assets/foia/priv foia sunshine week memo 2010-03.16.pdf


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ll.S. Department ofHomeland SecurityWashington,DC 20528

HomelandSecurityApril 26, 2010

The Honorable Darrel1lssaUnited States House ofRepresentativesRanking MemberCommittee on Oversight and Government Reform2157 Rayburn House Office BuildingWashington, D.C. 20515-6143The Honorable Patrick McHenryUnited States House of RepresentativesRanking MemberCommittee on Oversight and Government ReformSubcommittee on Information Policy, Census, and National Archives2157 Rayburn House Office BuildingWashington, D.C. 20515-6143

Re: Freedom of Information Act TransparencyDear Rep. Issa and Rep. McHenry:This is in response to your letter of March 25, 20I0, regarding Freedom of Information Act (FOIA)transparency at the U.S. Department of Homeland Security (DHS). Secretary Napolitano has askedme to respond to your inquiry directly.It is my duty to ensure the DHS embraces the Administration's presumption ofopenness andtransparency. We take those responsibilities quite seriously. My office, the DHS FOIA Office, isactively implementing sweeping policy changes in support of transparency and open government.Our disclosure program has instituted definitive measures to mandate proactive record posting, adoptthe "foreseeable harm" standard, and reduce the DHS request backlog. Furthermore, as noted in theNational Security Archives (NSA) audit you cite in your letter, we have also instituted new trainingassociated with the open government and transparency initiatives.DHS began its operations with a large. inherited FOIA backlog due to the pre-existing agencybacklogs. Additionally, when the new department stood up. it generated a flood of requests becauseof its status and mission. The result was a 98.396-request backlog at the end of FY 2006 - the largestfederal FOIA backlog in history. Despite resource constraints, and the fact that from 2006 to 2009,the number of total requests to the Department held relatively constant, in the last three years DHS


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reduced its backlog by over 80%. At the end of FY 2009, the backlog was 18,787. As ofMarch2010, the DHS-wide backlog was 11,850.This incredible result is due to the ongoing dedication of the DHS FOIA professionals. During FY2009 alone, DHS FOIA staff processed 160,007 FOIA requests. To support the backlog eliminationeffort, we are working with component leadership to ensure the Department's components devoteadequate resources to their FOIA programs.

We appreciate your interest in the DHS FOIA process. Given the volume of information yourequested - and the number of FOIA requests DHS processes each year - we provide the followingdetailed and summary information in response to your inquiry. Should you want more detailedinformation on any of the topics, please let us know.

I. The DHS Headquarters' and DHS components' historical FOIA logs for CY 2009 areavailable online at www.dhs.gov/foia.12. Detailed statistics concerning the granting and denial of all FOIA requests processedduring each fiscal year is available in our Annual FOIA Report to the Attorney General oftheUnited States. The Annual FOIA Reports for FY 2003-FY 2009 are available online atwww.dhs.gov/foia. 2 A copy of the 2009 Annual FOIA Report is attached for your reference.The NSA audit noted that DHS has increased releases in full by 46.2 percent and increasedpartial releases by 73.2 despite having complex requests seeking national security, homelandsecurity and law enforcement sensitive information. Additionally, NSA notes that DHS isnot one of the ten departments with the oldest pending FOIA requests.3. Detailed information regarding the 160,007 requests processed in FY09 is available in theattached 2009 Annual FOIA Report.4. Detailed information concerning the Department's efforts to comply with President Obamaand Attorney General Holder's policy memoranda is included in the first ever 2010 DHSChiefFOIA Officer Report, also available online at www.dhs.gov/foia.3 Furthermore, Iissued a Department-wide memorandum giving a FOIA overview in May 2009,4 a

I CY09 DHS and component FOIA logs: hllp:/lwww.dhs.gov/xfoialeditorial 0424.shtm2 FY09 Annual FOIA Report: http://www.dhs.gov/xlibrary/assets/foialprivacy rot foia 2009.pdf32010 ChiefFOIA Officer Report to the Attorney General of the United States:http://www.dhs.gov/xlibrarvJassets/foialpriv chief foia officer report cyIO.pdf4 ChiefFOIA Officer's Memorandum: FOIA Overview, May 28, 2009:hltp:l/www.dhs.gov/xlibrary/assets/foialfoia overview of the freedom of information act.pdf


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memorandum outlining the DHS policy of proactive disclosure in August 20095 and areminder reiterating the importance ofFOIA and transparency during Sunshine Week 2010,on March 16,2010.6 A copy of the 2010 DHS ChiefFOIA Officer Report, as well as copiesof the aforementioned memoranda, are attached for your reference.

I am proud ofwhat the Department ofHomeland Security has accomplished in making itselfmoreopen and accountable to the public and look forward to making great strides in the future to helpPresident Obama recognize his vision for an unprecedentedly open and responsive government. Ifwe may be of further assistance, please contact Assistant Secretary for Legislative Affairs, ChaniWiggins, at (202) 447-5890.Sincerely,

Mary Ellen CallahanChief FOIA Officer

Attachments

SChiefFOIA Officer's Memorandum: Proactive Disclosure, August 26,2009:http://www.dhs.gov/xlibrary/assets/foia/foia proactive disclosure.pdf6 ChiefFOIA Officer's Memorandum: Freedom of Information Act and Sunshine Week, March 16,2010:http://www.dhs.gov/xlibrary/assets/foia/priv foia sunshine week memo 2010-03-16.pdf


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Prime)'O.DkeU.s.DepartmentorHomeland SecurityWashington. DC20528

HomelandSecurityAugust18,2010

TheHonorableDarrell IssaCommittee on OversightandGovernment ReformU.S.HouseofRepresentativesWashington, DC 20515DearRepresentative Issa:

Thank you for your July 30, 2010 letterto SecretaryNapolitanoregardingtheDepartment ofHomelandSecurity's (DHS) Freedom of Information Act (FOIA)policy.The Secretaryhas asked me to reply on her behalf. The Departmentis committedtotransparency, and the FOIAOfficeprocesses FOlA requestswith an emphasisoncomplying with the spiritofFOIAand theOpenGovernment Initiative,aswell ascontinuing our successful reductionof thebacklog. Enclosedare answers to the specificquestionsyou posed in your letter.Thank you again for your letter. A copyof this responsehas also beensent toChairmanTowns,whowascopiedon your letter. Shouldyou wish additional assistance,pleasecontactme at (703) 235-0347.

Sincerely,/ J ~ ~ ~ _ary EllenCallahanEnclosures


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Department ofHomeland Security Response to July 30, 2010 LetterFrom Representative Darrellissa

I. Please provide the July 2009 directive requiring FOIA requests to be vetted by politicalpersonnel. Please also provide aUdocuments and internal correspondence related tothat directive.The July 2009 memorandum regarding the Department policy on reporting significant FOIArequests is just a slight modification of the weekly reporting process that has existed since theinception of the Department. The weekly reporting requirements have been part of the FOIAOffice's normal reporting mechanism since its implementation under the first ChiefFOIAOfficer. The Component FOIA officers have received written guidance on the submissioncriteria, with the firstwritten guidance being issued in 2005 and subsequently updated andreissued in 2006 and 2009. The July 2009 memorandum regarding reports of significantFOIA activities is available on the DHS Privacy Office webpage in the Electronic ReadingRoom. The Department has also posted the 2005 and 2006 memoranda regarding reports ofsignificant FOIA activities. The three memoranda relating to weekly reporting requirementsare also attached for your information.

2. Please provide all of the names (and positions) of your political staff involved in anydecision regarding a FOIA request.As part of their job duties, FOIA professionals gather requested material, apply theappropriate exemptions, and prepare the materials for release. At no point does political staffcompile information or decide whether information should be released. As has been thepractice since the beginning of the Department, senior leadership receives notice ofsignificant FOIA requests pursuant to the Department's normal reporting mechanism. Thisnotice is for awareness purposes only, and no political staffmember makes decisions aboutthe processingof a FOIA request.

3. Please confirm that FOIA requests are no longer reviewed by DBS political staff.Please also explain when and how tbe decision to rescind tbe July 2009 directivewasmade.As noted previously, the policy on reporting significant FOIA requests dates back to theinception of the Department, and has been part of the FOIA Office's normal reportingmechanism since its implementation under the first ChiefFOIA Officer.DHS has worked diligently to craft a process that creates the most effective use ofFOIAresources. FOIA professionals gather the requested material, apply the appropriateexemptions, and prepare it for release, and in certain circumstances a copy is provided tosenior leadership for awareness purposes. The Department has implemented improvedtechnical capabilities. which includes a SharePoint site to provide FOIA visibility across theDepartment and allows senior leadership to be as responsive as possible to stakeholders.


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4. Please identify any lawsuits in which DDS and/or yourselfare named as defendantsarising from delays or denials of any FOIA request vetted by the Department's poUticalstaff.DHS is unableto identifyany lawsuits arising from delaysor denials of any FOIArequestexamined by the Department's political staff.

5. Please provide any lists, databases, records, or other documents created by DRS torecord the home address, employer, political affiliation, or any other informationassociated with FOIA requesters since January 21,2009.DHS is authorizedto collect information underthe FOIAand PrivacyAct per 5 U.S.C. 301,552 (Freedomof Information Act).and552a (PrivacyAct);44 U.S.C. 3101 (RecordsManagement by Federal Agencies); andE.O. 12958 (Classified NationalSecurityInformation. as amended). Information is provided to theDepartment when submitting FOlAandlorPrivacyAct requests voluntarily. When individuals provide information to theDepartment with their FOIAand/orPrivacy Actrequests. theDepartment uses thisinformation to efficientlyand accurately process recordrequestsand administrative appealsunderthe FOIAand PrivacyAct. as well as access.notification, and amendment requests andappeals under the PrivacyAct. The DHS System of Records Noticeoutliningwhatinformation is collectedon FOIArequesters and thepurposesfor which it is used,DHS/ALL-001 - DHSFOIAand PrivacyAct Record System isavailableat 74 FR 55572,October28,2009(alsoaccessible at www.dhs.gov/privacy).


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February 9, 2005TotheDHS FOIAand Privacy Team:Atour lastmonthly meetingImentioned thatwewould beaskingyou10assisttheDHSPrivacy Officeinpreparing a weekly reportto theSecretary. Wereport weekly to theSecretary regarding theactlvities ofIhePrivacy Office. Aspart of thisreport,the Privacy Office notifies theSecretary about recentlycompleted andlorpublished systemsof records notices (SORNs), Privacy Impact Assessments (PIAs), newFOIA requests received.during the preceding week andthoserequests closedoutduring the sametimeperiod. Additionally, this reportadvises the Secretary aboutPIAsandSORNs (or amendments thereto) Ihatarein progress andpendingFOIA mediarequests. Thereportis also the basisfordeveloping theDepartment's weekly reportto theWhiteHouse.Toensureaccuracyand completeness of the2005 reports 10 theSecretary, weask thatyou report(viae-mail)to thePrivacyOfficebyCOBeveryFriday the following information:I. Existing SORNsthatare in theprocess of beingamended or havebeen identified as needingamendment.2. NewSORNsthat are inthe process of beingdrafted.3. SORNs thathavebeen published.4. Existing PIAsthatare inthe process ofbeingamended or havebeen identified as needing amendmenl(evenif that processhasnotyetbegun).5. NewPIAsthai are in the processof being drafted.6. PIAsthathavebeen published.7. FOrA requestsreceived. includingdate received, name of requester, requesterorganization ifapplicable. andsubjectofthe request,8. FOIA requests completed. including daleoriginal request received, dateclosed. nameof requester,requester organization if applicable, subject of Ihe request anddisposition.9. FOIA Mediarequests thatareopen. including date received, nameof requester. requester organization.andsubjectof the request.

Thankyou forhelpingin this ream effort.Nuala O'ConnorKelly, ChiefPrivacy Officer


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FOIA Section of the DHS Cabinet Report to the White HouseSubmission Guidelines(updated August 4, 2006)

TheChiefPrivacy Officermemo, February 9, 2005, is the reference forthe submissionrequirement. EveryFriday, components must report significant FOIA activities forthepastworking weekto the Privacy Office (P.O.). ThePrivacy OfficeFOIA leadershipintegrates the Information intoitsweekly reportto theWhite House Liaison. Negativereports are required.Guidelines for submissions:I. Submititemsbye-mail within thetextof the e-mail, noattachments.2. Submit, wlthone exception (see3(1) below), ONLY INCOMrNG FOIA requestsand appeal information.3. Select FOIA requests forSUbmission ifone of the following criteriaare met:a. The FOIArequest relates to a Presidential or agency priority;b. TheFOIArequesteror requested documents willgamermediaattention oris receiving mediaattention;c. The FOIArequest is fordocuments associated withmeetings withprominent elected, business, and/or community leaders;d. The FOIArequest is for congressional correspondence;e. The FOIA request is from a member ofCongress:f.The FOJA request isfrom amember of the media;g.The FOIArequestis from a member of an activistgroup,watchdogorganization, special interest group, etc.;h.The FOIArequest is fordocuments associated witha controversial orsensitivesubject;

i. TheFOIA request isfordocuments associatedwitha seniorofficial of thecomponent;j. A FOIAappealifit meets oneof the"a" through " j " criteria;k. It is a rOJA request andnota Privacy Act request;4. Items listed above in3 are suggestive andnotexclusive - exerciseprudentjudgment and submit items that reflect the spiritand intentof this report. Ifindoubt, pleasesubmit.S. The Director, Departmental Disclosure and FOIA, maynot include submissionthat leavesthe Privacy Office.


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Unless the Item 3 criteria is met, donot report the following (not an exhaustive orexclusive list);I. requestsfor contracts or grants2. requests fornA" tiles3. requests for FOIA logs4. requests for incident reports (including boating incidents, ete.)5. requests for budgetdocuments6. requests for genealogy documents7. 3rd party requests forpersonnel training or employee records

Format for submittingFOIA itemsto theweekly report:J. Identify the requester's name, cityandstate2. Identify. the requester byaffiliation (private citizen,organization membership.etc.)3. Identify your component as the receiving component (in thecase of transferswithinDHS. the initial component receiving therequest will reportthe item)4. Providea briefdescription of any lesser-known organization's mission(a Googte search usually provides sufficient info)5. Spell out all acronyms andusethecomponent's full name6. Prov ide-a brief summary of the requested records

Sample format:OnApril 10.Jonathan Tamez. anattorney from Phoenix. Arizona. requested from USVISIT biometric and admission records on behalfof hisclient.OnApril I I. Elliot Spagat, withTheAssociated Press. Washington. D.C. bureau,requested fromCustomsandBorderProtection (CBP) copiesof the datadictionary (i.e.table of contents)fQr theEnforcement CaseTrackingSystem database,which maintains arecord of Border Patrolapprehensions.

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l:.s. IkJllrllllCIII or HallldlDd Sccarfr)'Washington.DClOS21

p,tWJCYOlJir:.. MailStop06"July7, 2009

MEMORANDUM FOR:FROM:

SUBJECT:

AllDHSForA OfficersMary Ellen C a l l a h ~ / 1 c . . . c : . . . - ' L o ' ~ I o o C ~ _ ~ F--_Chief ForA O f f i ~ ~ d ChieCpAvacy OfficerGuidelines forReporting on Significant FOIAActivityforInclusion in theCabinet Report to the WhiteHouse

Every Thursday, components mustreportsignificant ForA activities, including significant FOlAreleases, forthe pastworkingweekto thePrivacy Office. The PrivacyOfficeFOIAleadershipintegrates the information into itsweekly reportto theWhite HouseLiaison. Negative reportsare required.Guidelines for submissions:

1. Submititemsbye-mail withinthetextof the e-mail, not attachments.2. Submitincoming FOIArequests andappeals, significant FOIAreleases,andFOIAlitigation information.3. select FOIArequests for submission ifoneof the following criteriaare met:a. The FOIArequest relatesto a Presidential oragencypriority;b. The FOIArequesteror requested documents willgamermedia attention or isreceiving mediaattention;c. The FOIA requestis fordocuments associated withmeetingswith prominentelected,business,and/orcommunity leaders;d. The FOIArequest is for congressional correspondence;e. The FOIArequest is fromamember ofCongress;f. The FOIArequest is from a member of themedia;g. The FOIArequest is from amember of anactivist group,w"tchdogorganization, special interest group, etc.;h. The FOIA request is for documents associated witha controversial orsensitivesubject;I, The FOIA request is fordocuments associated with a seniorofficial of thecomponent;j. A FOIAappeal ifit meetsoneof the"a" through "i " criteria;4. Itemslistedabove in 3 aresuggestive andnotexclusive - exerciseprudentjudgmentandsubmititemsthat reflect the spirit and intent of this report. Ifin doubt, please submit.S. Submissions foundnot tomeetthe above criteria maynot be includedin the final Cabinet


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Reportto theWhiteHouse.Unless the Item 3


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Sample format:I. Efficiency and Transparency - Steps taken to increase transparency andmakefonnsandprocesses usedbythe general public more user-friendly, particularly web-based andFOIArelated items:

TheCoastGuard recently announced plans toposton its web siteall times,dates, andagendas of the Commandant's meetings withrepresentatives of privateindustrywithin 24 hours.n. FOIA requests

OnJune 25,2009, EmilyRamshaw of The Dallas Morning News inAustin, Texas,requested from Immigration and Customs Enforcement (ICE)the following, as theypertainto a provided list of Texasdetention facilities: 1) All inspection/conditionsreports sinceJanuary I, 2007;2) Thenumber of abuse, neglector exploitationallegations at each of thesefacilities ineachof the last twoyearsandthe percentagethatwereconfirmed; and3) The number of psychiatrists or psychologists currentlyemployed ateachof thesefacilities. OnJune 26, 2009,Kate Brumback, a reporter fortheAssociatedPress, inWashington, D.C, requested from u.S. Immigration andCustoms Enforcement (ICE)information relatedto a former detainee at theStewart Detention Facilityin Lumkin,Georgia, whopassedawayduringa stayat a hospital in Columbus, Georgia, whileincustodyon March II, 2009. On June 30, 2009,TimothyKehrer, a representative fromthe DemocraticSenatorial Campaign Committee inWashington, D.C., requested fromUnitedStatesCitizenshipand Immigration Services (USCIS) all correspondence betweenUSCIS and the following Senators: Michael Bennet (D-CO), Robert Bennett(R-UT),Barbara Boxer(D-CA), JimBunning (R-KY), Richard Burr (R-NC), CIuistopherDodd(D-CT),Kirsten Gillibrand (D-NY), Blanche Lincoln (D-AK), HarryReid (0-NV), ArlenSpecter (D-PA), andDavid Viner (R-LA).

III. FOIA releases OnMay 12,2009, theDepartment of Homeland Security(DHS)Privacy Officereleased to TlteWashington Times a 97-page logof Congressional correspondence.Certain information withheld pursuant to FOIA Exemption 6.

IV. FOIA UtigatiOD DHS wasnamed as a defendant in Smith v. U.S. inwhich Smith is challenging hisarrestata border crossing in EI Paso as unconstitutional.

Pleasedirectanyquestions regarding this requirement toVaniaT. Lockett, Associate DirectorofDisclosure andFOIA,at 703-235-0790.


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u.s. Depll1tlleDt 0 ' HamdlDCI Sccaril)'Washington.DC 20528

Homeland, SecurityApril26, 2010

TheHonorable Darrell IssaUnitedStatesHouseofRepresentativesRankingMemberCommitteeon Oversightand Government Reform2157RayburnHouseOfficeBuildingW a s h i n g t o ~ D.C. 20515-6143TheHonorable PatrickMcHenryUnitedStatesHouseofRepresentativesRanking MemberCommittee onOversightand Government ReformSubcommitteeon InformationPolicy,Census,andNational Archives2157Rayburn HouseOffice BuildingWashington, D.C.20515-6143

Re: Freedomof Infonnation Act TransparencyDearRep. IssaandRep.McHenry:This is in responseto your letterofMarch 25,2010, regardingFreedomofInfonnatioD Act(FOIA)transparency at the U.S.DepartmentofHomeland Security (DHS). Secretary Napolitanobasaskedmeto respondto your inquiry directly.It ismyduty to ensurethe DHSembracestheAdministration'spresumption ofopeooess andtransparency. We take those responsibilitiesquiteseriously. Myoffice, theDRSFOIAOffice.isactivelyimplementingsweepingpolicychanges in supportof transparencyand open govemment.Ourdisclosureprogramhas instituteddefinitivemeasuresto mandateproactive recordposting,adoptthe "foreseeableharm" standard, and reduce theDHSrequestbacklog. Furthermore,as noted in theNationalSecurityArchives(NSA)audit youcite in your letter,wehave also institutednewtrainingassociated with the open governmentand transparency initiatives.DHSbegan its operationswith a large.inherited FOlAbacklogdue to the pre-existingagencybacklogs. Additionally. when the newdepartment stood up, it generated a flood of requests becauseof its statusandmission. The resultwasa 98.396-request backlogat the endofFY 2006- the largestfederal FOIAbacklog in history. Despiteresource constraints, and the fact that from2006to2009.thenwnberoftotal requests to the Department heldrelatively constant, in the last three yearsDRS

-_ ._ - - - - - - ,


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reduced its backlog byover 80%. At theendofFY2009, thebacklogwas 18,787. As ofMarch2010, theDRS-wide backlogwas 11,850.This incredible result is due to theongoingdedication of theDRSFOIAprofessionals. DuringFY2009alone, DHSFOIAstaffprocessed 160,007 FOIA requests. To supportthe backlog eliminationeffort, we areworking with component leadership to ensure the Department'scomponents devoteadequate resources to theirPOIAprograms.

Weappreciate your interest in theDHSFOIAprocess. Giventhe volumeof information yourequested- and the numberof FOIA requests DHSprocesses each year- weprovidethefollowingdetailed and summary information in response to your inquiry. Shouldyouwantmoredetailedinformation onanyof the topics, pleaselet usknow.1.TheDHSHeadquarters' andOMS components' historical FOIAlogsfor CY2009areavailable onlineat www.dhs.gov/foia.12. Detailed statisticsconcerning the granting anddenial ofall FOIArequestsprocessedduringeachfiscal year is available in ourAnnualFOlA Reportto theAttorneyGeneral oftheUnited States. TheAnnualFOIA Reports for FY2003-FY 2009 areavailable onlineatwww.dhs.gov/foia.2 Acopyof the 2009AnnualFOlA Report is attached foryour reference.The NSAauditnotedthatDHSbas increased releases in full by 46.2percentand increasedpartialreleases by 73.2despite having complex requests seekingnational security, homelandsecurity and law enforcement sensitive information. Additionally, NSAnotesthatDHS isnotone of the ten departments withtheoldestpendingFOIArequests.3. Detailed information regarding the 160,007 requests processed in FY09is available intheattached 2009AnnualFOlA Report.4. Detailed information concerning theDepartment's efforts to complywithPresident OhamaandAttorneyGeneralHolder'spolicymemoranda is included in the first ever2010DRSChlefFOlA OfficerReport, alsoavailable onlineat www.dhs,gov/foia.) Furthermore, 1issued a Department-widememorandum giving a FOIAoverviewinMay2009.4 a

I CY09 DHSand componeot FOIA logs: hJm;"www.dhs,gov/xfoialeditorja' 0424.shtm2FY09 Annual FOIA Report: hnp:/Iwww,dhs.govhcJibrary/assetslf'oiatprivac): rot (o;a 2009.pdf'2010 CbiefFOlA Officer Repon to the Attorney General oftbe United States:http://www.dhs.goy/x.jbrary/assets/foia/.priv chief foia officc[ report cyIQ.pdf ChicfFOIAOfficer's Memorandum: FOIAOverview. May 28. 2009:bnp:/Iwww.dhs.gov/xlihrary/assets/foiatfoja overview of ,he freedom of infonnatjon act .pdf


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memorandum outliningtheDRS policyof proactive disclosurein August20095 andareminderreiteratingthe importance ofFOIA andtransparency duringSunshineWeek2010.onMarch 16.2010.6 Acopy ofthe2010 DHSChfe/FOIA OfficerReport, as well as copiesoftheaforementioned memoranda, areattached for your reference.

I am proudof what theDepartment of Homeland Security bas accomplished inmakingitselfmoreopenand accountable to the publicand look forward to making greatstrides in the future to helpPresidentObamarecognize his vision foran unprecedentedly openand responsivegovernment. Ifwemaybeof furtherassistance, pleasecontactAssistantSecretary for LegislativeAffairs.CbaniWiggins, at (202)447-5890.

Attachments

, ChlefFOIA Officer'sMemorandum: Proactive Discloswo.August 26, 2009:bUp:Ilwww.dhs,gov(xljbrarylassetslfojalfujn proactive dlsclosum,pdf6 ChicfFOIA Officer's Memorandum: Freedom oflnfonnationAct and SW1ShineWeek. March 16.2010:http://www,dbs,gov/xlibnuy/assetslfojalpriv foja sunshine week memo 2QIO-Q316,pdf


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t .S. IlppllrtllMnlor Itoawlaad ~ r l l ) 'Washinglon. DC20S28

HomelandSecurityPmYJryO f J l ~ . MaY.'itDp O/SJJ

August 26, 2009


SUBJECT:

Distribution ~ ~ / ' v J /Mary Ellen Call . ( J t.f::.k:. ~ - - - " 7Chief FOIA O r nd lief rivacy OfficerProactive Disclosure and Departmental Compliance withSubsection (a)(2) of the Freedom of Information Act (FOIA)

On January 21, 2009, President Obama issued two important memoranda to the heads ofExecutive Departments and Agencies concerning government transparency. In one memorandumthe President committed his adrninistrntion to an "unprecedented level ofopermess ingovernment:' and in the other he stressed the importance ofthe Freedom ofInformation Act(FOIA), stating that it is "the most prominent expression ofa profound national commitment toensuring an open government." Critical 10ensuring the Department ofHomeland Security (DBS)successfully meets the President's standards is compliance with the tmnsparency requirementsoutlined by 5 U.S.c. 552(a)(2) of the FOIA. Under subsection (a)(2), federal agencies mustmake four distinct categories of records affirmatively available for "public inspection andcopying." I Agencies must satisfy this provision of the FOIA by promptly making the recordsavailable, either by proactively publishing records electronically to the Department's website orin a combination of electronic and conventional"puper" reading rooms. The Departmentmaintains the designated records in electronic reading rooms on the DHS Headquarters andcomponent websites.Per the requirements set forth in the AttorneyGeneral's May 30, 2008, report to the President onagency progress under Executive Order 13,392, "Improving Agency Disclosure of Information,"DHS and its components certified compliance with the minimum requirements with subsection(a)(2) October 31, 2008. Though the Department has taken numerous steps to improve its FOIAI The four categoriesof records 10 be made available arc:

A. linlll opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication ofeases;

B. those s ta tements of policy and imerpreratlons which have: been adopted by the agencylind lirenot publishedin the federal Register;C. administrative staffmanuals and instruClions10 sllIffthat affect a member or!he public: andD. records disclosed in response toD FOIA request Ihal "Ihe agency delermines have:become or are likely tobecome the subjecl of subsequent requests for substantially the same records."


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program, includingmaking the electronic readingroommorerobust, the current Presidentialinitiatives require an even greater degree of openness.AsChief FOIAOfficer, I direct the Department and itscomponents to include the followingcategories of records on their agencywebsitesand link them to their respectiveelectronicreading rooms:

I. Historical dailyschedules of themostsenior agencyofficials (notated to reflect thatofficialsmayhave deviated from the posted scheduleandabridged as appropriateforsecurity and privacy concerns)2. Executed contracts & grantsJ. Management directives and instructions4. Congressional correspondence underDHS control5. FOJA logs6. Any records releasedpursuant to a FOIArequest thathavebeen, or are likelytobecome, the subject of threeor more requests'Allof the aforementioned itemsare being proactively disclosedat thediscretion of theDepartment in an effort to complywith the President's memoranda. All of the aforementioneditemsare frequently the subject ofFOIA requests, and are not usuallysubject to FOIAexemptions. However, nothing in thismemorandum is intended to limit components' abilitytoproactively post additional records beyond thosesuggested consistent withFOIA andotherdisclosure laws. A component may chooseto postdocuments specific to its function inorder tofurtheradvance transparency. Forexample,FEMA maychoose to proactivelypost disasterrelated records in order to obviate the need toprocess thesecommonly requested records. In aneffort to implementthese recommendations, I haveaskedMr.William Holzerland,AssociateDirectorofDisclosureand FOIA, at 703-2350790, to be available to advise thecomponents inthiseffort. Pleaseask your FOrAOfficer to contactMr. Holzerland within 20 days to providehima timetable forcompletion of theseelectronic readingroomupgrades,and to keepMr.Holzerland apprised of component progress. Mr.Holzcrland will be reporting to meon thiseffort.Thank you for yourcontinuing efforts on behalfof the Department's FOIAprogram. r lookforward toworkingwith you on this andother FOIA initiatives to fulfill thePresident'scommitment to transparency.

2 S U.S.c. SS2(11}(2)(D).

www.dhs.ROV


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DistributionJanet Napolitano, SecretaryJane Holl Lute,DeputySecretaryJayAhem,ActingCommissioner,CBPAlejandro Mayorkas,Director,USCISCraigFugate,Administrator, FEMAJohnMorton, AssistantSecretary, ICEBartJohnson,ActingUnder Secretary for Intelligence andAnalysisBradBuswell,ActingUnder Secretary,ScienceandTechnologyDirectorateRandBeers,Under Secretary, National Protection & Programs DirectorateMark Sullivan,Director,USSSJan Lesher,Chiefof Staff forOperationsNoahKroloff, Chief of Staff for PolicyIvan Fang,GeneralCounselElaine Duke,Under Secretary, ManagementPhilipReitinger, DeputyUnderSecretary,National Protection & Programs DirectorateDallasBrown,Chief OperatingOfficer,National Protection & ProgramsDirectorateGregSchaffer,AssistantSecretary,Oflice of CyberSecurityand CommunicationsJamesSnyder, ActingAssistant Secretary, Infrastructure ProtectionDavidHeyman, AssistantSecretary, Officeof PolicyAlanBersin,AssistantSecretary, Officeof International AffairsBridgerMcGaw,Acting AssistantSecretary, PrivateSectorOfliceJulietteKayyem,AssistantSecretary,Officeof Intergovernmental ProgramsEdmund M. "Ted"Sexton, AssistantSecretary, StateandLocal LawEnforcementAdmiral Thad W.Allen,Commandant,United StatesCoast GuardGale Rossides, ActingAssistant Secretary/Administrator, Transportation SecurityAdministrationRichard Flowers,ActingCitizenship and Immigration ServicesOmbudsmanTimothyJ. Keefer, ActingOfficer forCivilRights & CivilLibertiesJohnLeech,ActingDirectorof theOfficeof'Counternarcotics EnforcementChuckGalloway, Acting Directorof theDomestic NuclearDetectionOfficeConnieL. Patrick,Director,FederalLawEnforcement TrainingCenterJanet Woodka, Federal Coordinator,Recovery and Rebuilding ofGulfConst Region,Dr.AlexanderGarza, Acting AssistantSecretary, Officeof HealthAffairs/ChiefMedical OffieerRichard L. Skinner, InspectorGeneralChani Wiggins, AssistantSecretary,OfficeofLegislative Affairs,RearAdmiral John Acton (USCGRet),DirectorOperations CoordinationSeanSmith, AssistantSecretary,Officeof Public Affairs


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Prirncf (J11i...\ .S. Depurlmenlor ttomrlA ndSecpriryWB'\IIr.glM. OC20S28

May 28, 2009


SUBJECT:

D istributionMa.ry Ellen C a l l ~ ~ 41 c;-/JJ /" i f /ChlcfFOIA O f f ~ r y ! / ~ ) {J?Vt..:-_.r.:L L __:-Overview of the Freedom of Information Act

On January 21, 2009, President Obama issued two important memoranda to the heads o fExecutive Departments and Agencies concerning government transparency, In on e hecommitted his administration to an "unprecedented level of openness in government," and in theother he stressed the importance of the Freedom o f Information Act (FOIA), stating that it is "themost prominent expression of a profound national commitment to ensuring an opengovernment:' My office is preparing more formal guidance on the President's FOIA initiative.In the meantime, it is necessary that all current and incoming Departmental employees have anunderstanding o f what is encompassed under FOIA, lind how it impacts DHS records. Pleasedistribute this within your Component/office as appropriate.

Presumption o f DisclosureFOJA gives any person a right, enforceable in court, to access federal agency records, except tothe extent that such records (o r portions o f them) are protected from public disclosure byexemption or exclusion. The basic purpose of the FOIA is to ensure a fundamental principle of ademocratic society -- that the public has a right to access and be informed about the activities ofits government. Under President Obama's memoranda and the Attorney General's implementingguidelines, agencies are encouraged to process FOIA requests with a presumption of disclosureand further encouraged (0 make discretionary releases. Thus, even if an exemption would applyto a record, discretionary disclosures are encouraged. If fuJI disclosure of a record is notpossible, any portion of that record that is not subject 10 an exemption will be disclosed.For purposes of FOIA, an agency record is either created or obtained by an agency, and theagency is either in possession or control of the record at the time a rOIA request is made. Theterm record has been defined broadly to include any infonnation in any format maintained by anagency, and/or individuals in that agency, including electronic formal. Typically, this mayinclude emails, memoranda, correspondence tiles, or similar work products that are kept in hardcopy or electronic files, information contained on discs or other storage media, handwrittennotes, calendars, audio/videotapes, and photos. Documents obtained from another executive


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branchagency may also be processed througha referral and consultation process. With respectto documents created or possessed by contractors, theymay also constitute agency records ifthey areunder control ofDHS.ExemptionsIn certain circumstances, some information found in agency records maybewithheld. Theinformationmust fall within an exemption specificallydesignated under FOIA. The relevantexemptions for DHS are I isted as fo)lows: exemption (1) - Classified Information Exemption (2) - ("low" and "high") InternalAdministrative Matters Exemption (3) - Statutory Exemptions Exemption (4) - Commercial Information Exemption (5) - Common LawPrivileges Exemption (6) - General Privacy Exemption (7) - Government LawEnforcement

It is important to note that exemptions do not apply merely because full or partial disclosuremaycause embarrassment or demonstrate anerror or fai lure. Therefore, all records responsive to aFOIArequest should be produced to the Componentor Department FOIA office to undergoanextensive review process. The Departmenthas a well-established FOIA review process thatclosely coordinates with the subject matterexperts within each program tomake detenninationsregardingrelease. I f you have further questions regardingFOlA. please feel free to contacteither the Department's FOIAOffice withinthe Privacy Office at 703-235-0790 or yourComponent's FOJA office.


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DistributionJanetNapolitano, SecretaryJane Hall Lute.DeputySecretaryJayAhem,Commissionerfor Customsand Border Protection (Acting)Michael Aytes) DeputyDirector. U.S. Citizenship and Immigration Services (Acting)W.Craig Fugate. Administrator, FEMAJohnTorres. AssistantSecretary for Immigration and Customs Enforcement (Acting)Roger Mackin. UnderSecretary for Intelligence and Analysis (Acting)BradBuswell. UnderSecretary for Science andTechnology (Acting)Mark Sullivan) Director. U.S. SecretServiceJan Lesher. Chief of Staff forOperationsNoahKroloff, Chief of Staff for PolicyIvan Fong,General CounselElaine Duke,UnderSecretaryforManagementDallas Brown,ChiefOperatingOfficer.National Protection & Programs DirectorateRearAdmiral MikeBrown.AssistantSecretary. Officeof CyberSecurityandCommunications(Acting)JamesSnyder. AssistantSecretary, Infrastructure Protection (Acting)Richard Barth,AssistantSecretary. Office of Policy (Acting)AlanBersin,AssistantSecretary,Officeof International AffairsBridgerMcGaw,AssistantSecretary, PrivateSectorOffice(Acting)JulietteKayyem, Assistant Secretary for Intergovernmental ProgramsEdmund M.Sexton. Assistant Secretary forStateand Local LawEnforcement