A Final Response from DHS – and thoughts on why all FOIA responses should be online

On February 6 the Department of Homeland Security (DHS) granted my request in full, and emailed me the records. According to the response letter, the release is in response to the request I filed back in October.

Here is the report and response letter:

Bennett Final Response

As followers of this blog may remember, when I called to check on the status of the October request a few months ago, DHS said it had no record of ever receiving it and asked me to please resubmit the request. A call to follow-up on the re-submitted request revealed that DHS had found the original request and were already processing it.

The only outstanding issue at DHS now is what happened to the second request I submitted. Hopefully, DHS disregarded that request once it found the old one (though it would have been nice of them to at least notify me). At worst, DHS is still processing my second request and I may get another copy of the report.

Actually, at the VERY worst, DHS applies some exemptions to the report the next time it is reviewed and sends me a redacted version. An agency applying exemptions inconsistently to the same document is certainly not without precedence – our friends over at the National Security Archive have some great examples from the world of classified documents.

This brings me to another reason why by default all records the government releases under the FOIA should be available online. At least one of the reasons exemptions are sometimes applied inconsistently is that at most agencies FOIA reviewers have no way to know how other reviewers have treated the same document. If all of the released documents were online, reviewers could look to the records already online to see how exemptions have been applied to similar records.

Making all records released under the FOIA available online is a common-sense solution to addressing some (though clearly not all) of the public’s frustrations with the federal FOIA system. As we’ve discussed previously, it is good policy for the public because it means we can access more records without having to file a FOIA request, and it is good policy for the government because it will have to process less requests for the same document.

Agencies already participating in the FOIAonline service currently have the option of making records released under the FOIA available in a (somewhat) searchable central repository. We hope that agencies using FOIAonline start to make better use of this feature. Agencies do not have to wait to join FOIAonline to start making this a common practice, though. We hope that all agencies start to think about how they can make material released under the FOIA more accessible.

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3 thoughts on “A Final Response from DHS – and thoughts on why all FOIA responses should be online

  1. Kel McClanahan February 10, 2013 at 5:36 am Reply

    Oddly enough, I’ve seen inconsistent redactions from some agencies who at the same time regularly cite to “standard procedures” that on their face are irreconcilable with the existence of inconsistent redactions. Some agencies (FBI and CIA are good examples) regularly state that their standard practice upon receiving a FOIA request is to first look for previously processed records which would be responsive. And yet when they finally get around to releasing records, some of them contain redactions that were not in the previous releases. It makes you scratch your head and wonder, if the first thing that all FOIA analysts at that agency do is look at the previously processed records, how then is inconsistent redaction even possible?

  2. Kel McClanahan February 10, 2013 at 6:21 am Reply

    Side note, even if being unaware of your agency’s prior releases is accepted as being a simple case of “one hand not knowing what the other hand is doing,” the government’s conduct in such cases is still worthy of condemnation in many instances. Consider the following actual fact pattern of one of my cases (Nat’l Sec. Counselors v. CIA, No. 11-445 (D.D.C.)):

    1) FOIA request is filed with DOJ Office of Legal Counsel (OLC) for OLC opinions on a few topics (mostly related to open government laws). Litigation ensues after about 18 months pass without a response.
    2) A year later (as in, 2 1/2 years after the request was filed), OLC releases only previously released opinions and withholds 58 in full. NSC agrees to only litigate 16 of the withheld opinions. All but a few of the 16 withheld opinions are over 30 years old.
    3) DOJ moves for summary judgment, arguing that the 16 opinions in question were protected by (b)(5), citing deliberative process and attorney-client privileges.
    4) Armed with the sparse Vaughn index of 16 withheld opinions (which consisted only of Opinion Date, Recipient, and Title), I go to the National Archives and locate one opinion in full which was accessioned to the Archives for publication by the Attorney General, locate a briefing on another by then-OLC head Antonin Scalia in which he describes the opinion in detail (accessioned by the office itself which requested the opinion), locate a previously released (and available on the web) State Dept. cable summarizing a third (for which DEA was the “client”), and locate a reasonably detailed description of a fourth in a subsequent (and released) OLC opinion. All in all, it took me about 6 hours of research time to find these.
    5) I oppose DOJ’s motion and describe what I found at the Archives, adding that I have no idea what else I would’ve found if I kept looking. I attach copies of all the documents I found in the Archives. I argue that this is enough to prove that there is good reason to question the validity of OLC’s assertions that everything is exempt.

    It is what happens next that shows the true character of DOJ FOIA litigators and their complete lack of interest in the Holder Memo saying “we will not defend positions that are not supported by law.” They COULD have said, “Mea culpa, we didn’t notice those, we’ll reprocess them.” They even could’ve stood behind their withholdings of the things I DIDN’T find, limiting their reconsideration to the opinions I DID. But they did neither of these things.

    Instead, they argued the following (and keep in mind when reading this that two of the things I found were authorized for public release by THE ATTORNEY GENERAL or OLC itself):

    “OLC did not and is not required to scour the National Archives and internet to ensure that the 16 opinions it has not publicly released and has withheld from NSC here have not made their way to the Archives or onto the internet through other means. NSC has not and cannot cite to any legal authority for imposing such an onerous burden. Courts have uniformly rejected the argument that an agency waives its right to invoke a valid exemption when someone other than the agency from which the information is being sought discloses it. The fact that defense counsel was able to locate one of the 16 opinions OLC has withheld in this case, after spending hours searching the national archives, does not support NSC’s argument that OLC should be forced to conduct an exhaustive search of public sources for every opinion it withholds.” (citations omitted).

    Even if one accepts the possibility that OLC is not responsible for its failure to account for releases made by a non-DOJ client agency (which I do not accept, since release by the client voids A-C privilege, but that’s another story), two of the proven prior releases were made BY DOJ. One by the Office of the Attorney General (presumably capable of authorizing such a release over OLC’s objection) and the other BY OLC. But instead of realizing that they are in fact bound by prior releases made by their own agency, they argue that checking for such releases is an “onerous burden” that they should not be required to shoulder. (Not to mention that this argument means that they wouldn’t have to check with their CLIENTS to see if THEY have released the information before withholding it as A-C privileged, a definite privilege no-no.)

    Tell me, does this look like a legal position that the DOJ described in Holder’s memo would take? Or one taken by a DOJ that will staunchly defend any agency action, period?

  3. […] of making requests at other agencies. We stopped updating the project’s blog with our responses and observations in May 2013 after we received a final response from most of the […]

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