The Identity Project notes on its blog today that the Department of Homeland Security singled out EFF, along with other activist groups and media representatives such as the ACLU, EPIC, Human Rights Watch, AP, etc, for an extra layer of review on its FOIA requests. Records posted online by the DHS in response to one of the Identity Project’s FOIA requests show that the agency passed certain requests through extra levels of screening. According to a policy memo from DHS’s Chief FOIA Officer and Chief Privacy Officer, Mary Ellen Callahan, DHS components were required to report “significant FOIA activities” in weekly reports to the Privacy Office, which the Privacy Office then integrated into its weekly report to the White House Liason. Included among these designated “significant FOIA activities” were requests from any members of “an activist group, watchdog organization, special interest group, etc. “ and “requested documents [that] will garner media attention or [are] receiving media attention.”

At least three of our FOIA requests to the DHS are mentioned by name in the documents (more may be mentioned but significant sections of the documents are blocked out). These include our request for information on how federal agencies are monitoring social networking sites, our request seeking misconduct reports submitted to the Intelligence Oversight Board, and our request seeking information on how the DHS addresses laptop encryption during border searches. (See DHS Documents here (p.50), here (p. 31), here (p. 46), here (p. 48), and here (p.6).)

It appears high-level DHS officers were involved in several stages of the FOIA process and needed to sign off on the documents before they were released. In a string of emails from Fall 2009 (see pp. 31-33), officials state that not only would all FOIA requests deemed “significant” be reviewed by high-level staff within the agency but DHS components were also required to forward “the actual FOlA request documents and the responsive records . . . to the [DHS] Front Office prior to being released.” This included “any responsive records going to media organizations or third-party groups.” (emphasis added). Further, DHS components were specifically instructed not to release documents until DHS’s Front Office and Deputy Chief FOIA Officer Catherine Papoi personally reviewed the responses and “[gave] them the thumbs-up.” Papoi informed components multiple times in emails, “It is very important that your office not send the response to the requester until I notify you that the response has been reviewed and is cleared to be sent to the requester.” (bold and underline in original).

In a later email (see pp. 33-34), DHS’s Associate Director of Disclosure and FOIA Operations, Vania T. Lockett, noted the agency was also tracking documents released in response to litigation:

Effective Immediately, the Secretary's Office would like to review ALL releases of FOIA material for matters in litigation. As such, after you have cleared such releases through our internal QC review process (e.g. through Bill or me) and through the equity-holders (e g. components, outside agencies, submitters, etc.), you will need to forward proposed release packages to Catherine Papoi to be submitted for clearance by the Secretary's Office.

It is likely this extra, high-level review caused significant time delays in the agency’s already backlogged releases, as the email goes on to note: “Please keep this extra step in mind when determining the amount of time required in clearing records for release.”

So what does this mean for EFF’s FOIA requests? Well, in the three requests mentioned by name in the DHS documents, there was significant time delay between when we submitted our FOIA request and when we finally received responsive documents (and in two of these requests, we did not receive records until well after we filed suit against the agency). However, a more important question is whether DHS officials sanitized any of their responses for improper or perhaps political reasons prior to releasing the documents. The FOIA contains a limited number of exemptions that allow agencies to withhold information. However, these exemptions are to be construed narrowly in favor of disclosure. The Obama administration has urged the agencies repeatedly to proactively release documents. As the President has said:

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. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.

Did DHS withhold documents for reasons outside the FOIA? We plan to raise these questions in our ongoing litigation in both the social networking and the Intelligence Oversight Board cases.

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