FOIA Request: CREW: Department of Homeland Security (DHS): Regarding Records Showing Political...

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CREW Icitizens for responsibilityand ethics in washington

March 28,2011

By Facsimile (703-235-0442) and email ([email protected])

Director, Disclosure and FOIA

Privacy Office

U.S . Department ofHomeland Security

245 Murray Drive SW, Building 410

STOP-655

Washington, D.C. 20528-0655

Re: Expedited Freedom of Information Act Request

Dear Sir/Madam:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for

records, regardless of format , medium, or physical characteristics , and including electronic

records and information, audiotapes, videotapes and photographs, pursuant to the Freedom of

Information 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 copies of all documents DHS provided to the House Oversight

and Government Reform Committee in response to Committee Chairman Darrell Issa 's requestsof January 14,2011 , and February 1,2011.

Please search for responsive records regardless of format , medium, or physical

characteristics. Where possible, please produce records electronically, in PDF or TIF format on a

CD-ROM. We seek records of any kind, including electronic records, audiotapes, videotapes,

and photographs. Our request includes any letters, emails, facsimiles, telephone messages, voice

mail messages, and transcripts, notes , or minutes of any meetings, telephone conversations, or

discussions. Our reque st also includes any attachments to these records.

If it is your position that any portion of the requested records is exempt from

disclosure, CREW requests that you provide it with an index of thos e documents as requiredunder Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As

you are aware, a Vaughn index must describe each document claimed as exempt with sufficient

specificity "to permit a reasoned judgment as to whether the material is actually exempt under

FOIA." 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 each

withholding it must discuss the consequences of supplying the sought-after information." King v.

1400Eye Street, N.W. , Suite 450,Wash ington, D.C . 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.




March 28,2011

Page Two

us. Dep't ofJustice, 830 F.2d 210,223-24 (D.C. Cir. 1987) (emphasis added). Further, "the

withholding agency must supply'a relatively detailed justification, specifically identifying thereasons why a particular exemption is relevant and correlating those claims with the particular

part 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 5

U.S.c. § 552(b). Ifit is your position that a document contains non-exempt segments, but that

those non-exempt segments are so dispersed throughout the document as to make segregation

impossible, please state what portion of the document is non-exempt, and how the material is

dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of

nonsegregability 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 is

not reasonable to segregate portions of the record for release.

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11, CREW requests a

waiver 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 a

better understanding of relevant government procedures by CREW and the general public in a

significant way. Moreover, the request is primarily and fundamentally for non-commercial

purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d1282,1285 (9thCir. 1987).

Specifically, these records are likely to contribute to greater public awareness of the truth

behind allegations that political appointees at DHS have interfered with the FOIA review process

at DHS. See Jennifer Epstein and MJ Lee, DHS called FOIA vetting 'bananas,' Politico, March

28,2011; Ted Bridis, Emails: Insiders Worried Over Political 'Meddling,' Associated Press,

March 28, 2011 (botth attached as Exhibit A). This issue currently is the subject of an

investigation by Rep. Issa as chairman of the House Oversight Committee, and the subject of an

upcoming hearing before the committee. Id. The Oversight Committee, however, has not yet

made any of these documents public.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

Revenue Code. CREW is committed to protecting the public's right to be aware of the activities

of government officials and to ensuring the integrity of those officials. CREW uses a

combination of research, litigation, and advocacy to advance its mission. The release of

information garnered through this request is not in CREW's financial interest. CREW will

analyze the information responsive to this request, and will share its analysis with the public,




March 28, 2011

Page Three

either through memoranda, reports, or press releases. In addition, CREW will disseminate any

documents it acquires from this request to the public through its website,\vww.citizensforethics.org, which also includes links to thousands of pages of documents CREW

acquired through its multiple FOIA requests as well as documents related to CREW's litigation

and agency complaints, and through www.scribd.com.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because

CREW qualifies as a "representative of the news media" pursuant to the FOIA and DRS

regulation 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 ofAppeals for the District ofColumbia Circuit found the National

Security Archive was a representative of the news media under the FOIA, relying on the FOIA's

legislative history, which indicates the phrase "representative of the news media" is to be

interpreted broadly; "it is critical that the phrase 'representative ofthe news media' be broadly

interpreted if the act is to work as expected. . . . In fact, any person or organization which

regularly 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) (emphasis

added), cited in id.

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, \vww.citizensforethics.org, thatreceived 71,353 page views in February 2011. In addition, CREW posts all of the documents it

receives under the FOIA on www.scribd.com. and that site has received 660,525 visits to

CREW's documents since April 14, 2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that

currently has 16,850 subscribers. CREWCuts provides subscribers with regular updates

regarding CREW's activities and information the organization has received from government

entities. A complete archive of past CREWCuts is available at

http://www.citizensforethics.org/newsletter.

Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics in

Washington, that reports on and analyzes newsworthy developments regarding government ethics

and corruption. The blog, located at http://www.citiznesforethics.org/blog, also provides links

that direct readers to other news articles and commentary on these issues. CREW's blog had

3,864 page views in February 2011.

Finally, CREW has published numerous reports to educate the public about government




March 28,2011

Page Four

ethics and corruption. See The Revolving Door, a comprehensive look into the post-government

activities of24 former members of President Bush's cabinet; Record Chaos, which examinesagency compliance with electronic record keeping responsibilities; and Those Who Dared: 30

Officials Who Stood Up For Our Country. These and all other CREW's reports are available at

http://www.citizensforethics.org/repOlis.

Based on these extensive publication activities, CREW qualifies for a fee waiver as a

"representative ofthe news media" under the FOIA and agency regulations.

Request for Expedition

Pursuant 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 the

dissemination of information it gathers from a variety of sources, including the FOIA, and seeks

the 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 CREW

acquired from multiple FOIA requests, as well as documents related to CREW's FOIA litigation

and other complaints.

Here there is a compelling need to inform the public about the truthfulness behind

allegations that DHS's processing ofFOIA requests has been compromised by interference from

political appointees. The public also needs this information to judge the legitimacy of the

ongoing congressional investigation into this matter, despite DHS's denials. The lack of fulldisclosure and transparency surrounding this controversy undermines public confidence in both

DHS and Congress, and distracts DHS from attending to the already pressing demand to process

FOIA requests and reduce its backlog. Release of the requested documents will answer questions

as to whether DHS's FOIA processing has been subject to political interference.

Under these circumstances, CREW clearly meets the requirements for expedition set out

in the FOIA and DHS regulations.

Pursuant to C.F.R. § 5.5(d)(3), the undersigned hereby certifies that the basis for this

request 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 the

requested records please contact me at (202) 408-5565. Also, if either CREW's request for a fee

waiver or its request for expedition is not granted in full, please contact our office immediately

upon making such a determination. Please send the requested records to Anne L. Weismann,




March 28, 2011

Page Five

Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450,

Washington, D.C. 20005.

Sincerely,

Anne L. Weismann

Chief Counsel

Enclosure



EXHIBIT A



DHS called FOIA vetting 'bananas' - POLITICO.com Print View Page 1 of2

P LITDHS called FOIA vetting 'bananas'By Jennifer Epstein and MJ LeeMardi 28, 20'1'1 07:05 AM EDT

Ahead of a congressional hearing this week on whether senior political appointees at theDepartment of Homeland Security have blocked the release of some documents requestedunder the Freedom of Information Act, a series of newly uncensored emails indicates that somestaffers complained for months of internal "meddling" by Obama-appointed officials.

Obtained by The Associated Press, the emails describe "crazy" and "bananas!" politicalreviews of document requests, and "constant stonewalling" as files went to HomelandSecurity Secretary Janet Napolitano'S political staff as part of the pre-release vetting process.

President Barack Obama has said that federal workers should "act promptly and in a spirit ofcooperation" to fulfill FOIA requests, and Attorney General Eric Holder has stressed that"unnecessary bureaucratic hurdles have no place in the new era of open government." Butcritics say that the administration has been bogged down by political interests in fulfilling

document requests from journalists, watchdog groups and ordinary citizens.

"Redaction decisions have always been made by FOIA professionals and career legalstaff," Homeland Security spokeswoman Amy Kudwa said in an statement to POLITICO.

In one recent instance cited by the AP, immigration rights advocates had asked thedepartment for e-mails that political appointees had sent to U.S. Immigrations andCustoms Enforcement about a controversial program. The internal search uncovered"embarrassing, crude exchanges," that were revealed not by the senders of those emailsbut by the recipients.

"Apparently these embarrassing exchanges didn't get turned over when the (political) frontoffice conducted its search but they did when the ICE employees copied on theseexchanges coughed up the responsive records," the FOIA unit's associate director,William Holzerland, wrote in January, the AP said.

Kudwa said that "no responsive documents were withheld" by the department's politicaloffice. The Privacy Office, she added, never requested that the political appointees searchfor responsive documents on the ICE issue.

The department's chief privacy officer, Mary Ellen Callahan, herself a political appointee,warned in emails that the department could be sued for the delays sparked by the politicalreviews. "This level of attention is CRAZY," she wrote to her deputy in late 2009, musingthat she hoped someone would submit a FOIA request on the process itself, the APreported. Days later, the AP filed a FOIA request for documents related to political vettingand received close to a thousand pages of censored emails last summer.

"When (the chief information office) pulled off the emails for these individuals, the pagecount is much higher, indicating that [Napolitano's deputy chief of staff Amy Shlossman]and [chief of staff Noah Kroloff] possibly did not retrieve all the responsive emails or optednot to produce all responsive ernails," Catherine Papoi, then a deputy, wrote in May toCallahan. "I think we have an obligation to compare the hard copy emails to those pulled

http://dyn.politico.com/printstory.cfm?uuid=EC2FOAB7-625E-4965-A2BE-55766132B326 3/28/2011



DHS called FOIA vetting 'bananas' - POLITICO.com Print View

by the CIO from the individuals' email accounts to determine why the discrepancy."

The department contends that the discrepancies had to do with the formatting of theemails, and that all the content is identical.

Page 2 of2

The Freedom of Information Act requires that the government release information to thepublic unless it is deemed a threat to national security.

Reporting at the time prompted an investigation by the department's inspector general andan examination by Rep. Darrell Issa (R-Calif.), who is now the chairman of the HouseOversight and Government Reform Committee.

Callahan and Ivan Fong, the department's general counsel, are set to testify before thecommittee on Thursday.

© 2011 Capitol News Company, LLC

http://dyn.politico.com/printstory.cfm?uuid=EC2FOAB7-625E-4965-A2BE-55766132B326 3/28/2011



Emails: Insiders Worried Over Political 'Meddling' Page 2 of9

Emails: Insiders Worried Over Political 'Meddling'

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WASHINGTON - The Homeland Security Department official in charge of submitting sensitive government

files to political advisers for secretive reviews before they could be released to citizens, journalists and

watchdog groups complained in emails that the unusual scrutiny was "crazy" and hoped someone outside the

Obama administration would discover the practice, The Associated Press has learned.

Chief Privacy OfficerMary Ellen Callahan, who was appointed by Homeland Security Secretary Janet

Napolitano, complained in late 2009 that the vet ting process was burdensome and said she wanted to change it,

according to uncensored emails newly obtained by the AP. In the emails, she warned that the Homeland

Security Departmentmight be sued over delays the political reviews were causing, and she hinted that a reporter

might find out about the vetting. The reviews are the subject of a congressional hearing later this week and an

ongoing inquiry by the department's inspector general.

"This level of attention is CRAZY," Callahan wrote in December 2009 to her then-deputy, Catherine Papoi.

Callahan said she hoped someone outside the Obama administration would discover details of the political

reviews, possibly by asking for evidence of them under the Freedom of Information Act itself: "I really really

want someone to FOIA this whole damn process," Callahan wrote.

Cal lahan is expected to be a central witness during an oversight hearing Thursday by the House Government

Reform and Oversight Committee. Anticipating the hearing, the department announced internally Monday that

any further political vetting of information requests will be completed within 24 hours. The congressional

investigation into government transparency under President Barack Obama is among the earliest by Republicans

since they won control of the House and targets one of the first pledges Obama made after he moved into the

White House.

http://www.huffingtonpost.com/2011/03/28/obama-foia-homeland-security-emails_n_8413... 3/28/2011




Less than one week after Callahan's email, on Dec. 21, the AP formally requested the records about the

controversial political vetting. The agency ultimately turned over more than 995 pages of emails last summer,

after a seven-month fight, and the AP wrote about the program. But the emails were heavily censored under a

provision in the Freedom of Information Act allowing the government to withhold passages that describe

internal policy-making deliberations.

The newly obtained versions of the same internal emails are not censored. They show that insiders described the

unusual political vetting as "meddling," "nuts" and "bananas!" Together with other confidential emails obtained

by the AP for the first time, the files reflect deep unease about the reviews and included allegations thatNapolitano's senior political advisers might have hidden embarrassing or sensitive emails that journalists and

watchdog groups had requested. The government said this didn't happen.

After an admitted al-Qaida operative tried to blow up a commercial airliner flying to Detroit on Christmas 2009,

the AP asked for emails sent among Napolitano; her chiefof staff, Noah Kroloff; deputy chiefof staff Amy

Shlossman; and four others. But the number of printed pages that Kroloff and Shlossman turned over to the

FOIA unit was much less than what a computer search indicated should have existed, according to emails. The

department said Monday that the disparity was an idiosyncrasy of how the computer searches were conducted

and that no emails were hidden.

"I think we have an obligation to compare the hard copy emails to those pulled by the (chief information office)

from the individuals ' email accounts to determine why the discrepancy," Papoi wrote in May to Callahan.

Department spokeswoman Amy Kudwa said Monday that no emails were withheld by Napolitano's office, and

no one complained that emails weren't turned over that should have been. The department said its electronically

conducted searches distinguish each email within a conversation thread as a separate message, so the number of

printed pages from such searches appears higher than when an employee manually prints emails from an inbox

but the output is the same.

"At no point did anyone alert the office of the secretary or the office of the general counsel of concerns that

responsive documents had not been submitted for review," Kudwa said in a statement. "Had any concerns been

raised, appropriate steps would have been taken."

The Freedom of Information Act, the main tool forcing the government to be more transparent, is designed to be

insulated from political considerations. Anyone who seeks information through the law is supposed to get it

unless disclosure would hurt national security, violate personal privacy or expose confidential decision-makingin certain areas. People can request government records without specifying why they want them and are not

obligated to provide personal information about themselves other than their name and an address where the

records should be sent.

But at the Homeland Security Department, since July 2009, career employees were ordered to provide political

staffers with information about the people who asked for records - such as where they lived and whether they

were private citizens or reporters - and about the organizations where they worked. If a member ofCongress

sought such documents, employees were told to specify Democrat or Republican. No one in government was

allowed to discuss the political reviews with anyone whose information request was affected by them.

Papoi was replaced as deputy chief FOIA officer earlier this month by her new boss, Delores J. Barber, who

took over Papoi's title and moved into Papoi's office. The Republican chairman of the House oversight

committee, Rep. Darrell Issa ofCalifornia, said that "appeared to be an act of retaliation." Issa identified Papoi

as the employee who confidentially complained in March 2010 to the DHS inspector general about the political

vetting of requests for government files. The department said Papoi, who is on leave, applied unsuccessfully for

a new supervisory position ultimately awarded to Barber and that Papoi's salary was unaffected.

The emails also raise doubts about whether the emails previously released to the AP were properly censored.

"The government should not keep information confidential merely because public officials might be

embarrassed by disclosure, because errors and failures might be revealed or because of speculative or abstract

fears," Obama said shortly after he took office.

http://www.huffingtonpost.com/2011/03/28/obama-foia-homeland-security-emails_n_8413,.. 3/28/2011




In a statement, Kudwa said, "Redaction decisions have always been made by FOIA professionals and career

legal staff."

The government censored Callahan's email that described the "crazy" scrutiny by political advisers. It alsocensored another email by associate FOIA director William Holzerland, who told Callahan in September 2009

that the political reviews were "bananas!" Also censored were complaints by Papoi, the former deputy, that the

political reviews were "meddling" and, together with "constant stonewalling" by the department's top lawyers,

causing delays in the agency's open records department.

"I currently have 98 requests that are tagged by the front office for tracking and forwarding to the front office,"

Papoi wrote in one previously censored passage. "I simply don't have the time or staff to review all ofthose

requests before we send them on. Quite honestly, we shouldn't have to."

The AP protested last year that the emails it received had been improperly censored, but the Homeland Security

Department never responded to its formal appeal.

Online:

Censored copies of government emails: http://www.dhs.gov/xfoia/gc 1283193904791.shtrn

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