CREW I citizens for responsibility

and ethics in washington

February 10, 2011

By Facsimile (703-235-0442) and email (foia@hg.dhs.gov)

Director, Disclosure and FOIA

Privacy Office
U.S. Department of Homeland Security
245 Murray Drive SW, Building 410
STOP-655
Washington, D .C. 20528-0655

Re: Expedited Freedom of Information Act Request

Dear Sir/M adam :

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 any and all records of communications among and between
Rep . Darrell E. Issa and/or anyone acting on behalf of Rep. Issa or the House of Representatives
Committee on Ov ersight and Government Reform ("Oversight Committee") , Rep. Issa's
personal staff, any staff of, and any investigators internal 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) any employee of the DHS Privacy Office including, but
not limited to , William H. Holzerland, Catherine M. Papoi , and/or Vania T. Lockett.

CREW also seeks any and all records of communications among and bet ween DHS '
Offic e ofInspector General and Rep . Issa , Rep. Elij ah E. Cummings , and /or anyone acting on
behalf of Rep. Issa and/or Rep. Cummings.

Please search for responsive reco rds regardles s of format, medium, or ph ysic al
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, audiotape s, videotapes ,
and photographs. Our request includes any lett ers , emails, facsimil es , telephone messages, voice
mail messages, and transcripts, notes, or minutes of any meetings, telephone conversations, or
discussions. Our request also includes any attachments to these records.

1400 Eye Street, N.W. , Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org
.~,
Director, Disclosure and FOIA
February 10,2011
Page Two

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 those documents as required
under 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.
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 the
reasons 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 ofthe 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). If it 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 of
exemptions 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.2d
1282,1285 (9thCir. 1987).

These records are likely to contribute to greater public awareness ofDHS's FOIA review
policies and practices and the truthfulness of the allegation that political appointees at DHS have
interfered with the FOIA review process at DHS. This issue currently is the subject of an
investigation by Rep. Issa as chairman of the House Oversight Committee based on his claim that
an unnamed individual has provided him with information "that top DHS officials were involved
in restricting information released under FOIA requests." Jake Sherman, Issa Battles DHS Over
FOIA Requests, Politico, February 2, 2011 (enclosed as Exhibit A). Rep. Issa together with Sen.
Director, Disclosure and FOIA
February 10,2011
Page Three

Charles Grassley began in investigation of this issue last August when the two sent letters to 29
government agency inspectors general, including DHS's inspector general. Reportedly DHS
denied any inappropriate meddling by political-level officials, yet Rep. Issa is continuing to press
the 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 the
allegation that certain DHS officials have politicized FOIA processing at the agency by
improperly interfering with and delaying agency responses to FOIA requesters. In addition, the
requested documents would bring transparency to a process that to date has been shrouded in
secrecy based on unidentified information from unnamed individuals that, accordingly, threatens
to 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 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,
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,
www.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 Reguest

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 DHS
regulation 6 C.F.R. §5.11. In Nat 'I Sec. Archive v. Us. Dep 't ofDefense, 880 F.2d 1381, 1386
(D.C. Cir. 1989), the Court of Appeals for the District of Columbia 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 of the 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 ofthe news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30,1986) (emphasis
added), cited in id.
Director, Disclosure and FOIA
February 10,2011
Page Four

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, www.citizensforethics.org, that
received 53,145 page views in January 2011. In addition, CREW posts all of the documents it
receives under the FOIA on www.scribd.com. and that site has received 607,799 visits to
CREW's documents since April 14, 2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that
currently has 16,960 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
4,045 page views in January 2011.

Finally, CREW has published numerous reports to educate the public about government
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 examines
agency 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/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 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 have
access 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
Director, Disclosure and FOIA
February 10,2011
Page Five

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 full
disclosure 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 1. Weismann,
Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W. , Suite 450,
Washington, D.C. 20005 .

Sincerely,

Anne 1. Weismann
Chief Counsel

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

Issa battles DHS over FOIA
requests
By: Jake Sherman
February 2, 2011 04:34 PM EST
Darrell Issa has picked his first real fight
decision to involve a general counsel in his
investigation "raises questions about the
department's commitment to the
president's effort to create 'an
unprecedented level of openness in
government. III

with the Obama administration, accusing

the Department of Homeland Security of In the next paragraph of a letter sent to
letting political appointees interfere with Napolitano Tuesday, Issa sought to remind
freedom of information requests. Advertisement

Issa is claiming that he has information

from an unnamed whistleblower that top
DHS officials were involved in restricting
Did you know...
information released under FOIA requests.
DHS officials say it is extremely rare for
anyone outside the FOIA department to be Nestle employs more
involved to such requests - and when they 44,000 people
do, they do not restrict the data that's in 47 states.
being released.

While Issa battles with bureaucrats, this

first investigation could be more significant
than just a skirmish over FOIA practices.
Through the media and public
appearances, Issa has tried to turn back
the notion that he is on a witch-hunt for
Barack Obama, but is rather interested in
real oversight of the federal bureaucracy.
This investigation shows Obama will never
truly be divorced from these investigations.

For starters, Issa is demanding all emails

between the White House and DHS in
regards to FOIA - a trove that could include
reams of emails between a sensitive
national security agency and top
administration officials.

He's also accusing the department of

defying the president's goals when it
comes to ooenness. He said that DHS's

http://dyn.politico.comlprintstory.cfm?uuid=99D4675D-3F4D-48D I-B439-CFIIDC598FAE 2/3/2011

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

the secretary of an Obama quote in a
memorandum about the Freedom of
Information Act, where the president lauds
the law as encouraging "accountability
through transparency," calling it the "most
prominent expression of a profound
national commitment to ensuring an open
government."
the wire reported that the department was
sending FOIA requests through political
appointees on a wide range of issues. The
AP story said that lawmakers who filed
FOIA requests were being identified by
party, and the process of kicking requests
to more senior officials delayed the release
time of many requests.

DHS aides declined, even on background, Advertisement

to discuss if they thought there were
political motivations for the investigation.
Did yOU! know...
Matthew Chandler, a spokesman for DHS,
said the agency would cooperate with Issa'
s investigation.
Nestle more
"We will continue to cooperate with than 44,000 people
Chairman Issa and provide information in 47 states.
responsive to his requests," Chandler said.
"Our record is clear: under this
administration, the Department has
reduced the FOIA backlog by 84 percent,
released over 138,000 FOIA requests in
the past year, the most of any federal
agency, and substantially reduced the
amount of time it takes to process FOIA
requests."

Committee Democrats said Issa's aides

have not invited them to be a part of this
investigation.

Issa, in his request for documents, refers to

a law that says that individuals may not
"arbitrarily or capriciously" withhold
information through FOIA. DHS aides say
that's not happening.

The FOIA dispute has its roots in an

Associated Press story from 2010, when

http://dyn.politico.comJprintstory.cfm?uuid=99D4675D-3F4D-48D 1-B439-CF11DC598FAE 2/3/2011

Issa battles DHS over FOIA requests - POLITICO.com Print View Page 3 of3

Republicans say that Mary Ellen Callahan,

the department's chief privacy officer, told
Issa's staff that there was no inappropriate
meddling by political agents - but a
whistleblower later gave Republican
committee staff information that
undermined that claim, a committee aide
said.

But instead of asking Napolitano to testify - Advertisement

a tact that would certainly provide the GOP
with the Issa versus Obama drama that
many in D.C. crave - Issa is going after Did you know...
smaller fish. He has asked Napolitano's
chief of staff, deputy chief of staff, the chief
of staff to the general counsel, Callahan
and top FOIA officials to speak to the Nestle ernplovs more
committee behind closed doors on Capitol than 44,000 people
Hill. DHS aides would not comment on in 47 states.
whether those aides would be made
available for interviews.

As DHS sought to brush back on Issa's

claim, they've taken to a tried-and-true
Democratic tactic: blaming the Bush
administration.

"Really what this broke down to is the FOIA

office here had the biggest backlog in
government," a DHS aide said.

Shortcuts To Links In Article

http://dyn.politico.comJprintstory.cfm?uuid=99D4675D-3F4D-48D1-B439-CF11DC598FAE 2/3/2011