Brushfire with Julia: Freedom to Withhold Information
Boiling Frogs, Monday, 11. July 2011
Department of Homeland Security Finds FOIA to be “Politically undesirable”!

In theory, the Freedom of Information Act (FOIA) guarantees the legal right of the American public to obtain federal agency records. Judicially enforceable, FOIA was designed to ensure public access to Executive Branch records. The U.S. Supreme Court has stated that FOIA’s purpose “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed.”

In practice, FOIA morphed into a monstrosity that not only denies citizens their right to obtain information, but causes some of the requesters to become targets of investigations. The Supreme Court has consistently held that FOIA does not permit agencies to investigate either FOIA requesters or their reasons for submitting requests. In 2004, the Supreme Court held that “(a)s a general rule, withholding information under FOIA cannot be predicated on the identity of the requester.”

President Obama pledged to foster a new era of openness and transparency. On his first day in office, he issued memoranda relating to transparency and open government issues, including “Freedom of Information Act” and “Transparency and Open Government”. Inspirational speeches are great, but actions speak louder than words. The record reflects that during Obama’s presidency FOIA has become even less transparent than before. Those asking the questions and telling the truth are being prosecuted and otherwise attacked at the rate surpassing all prior American presidencies.

Undeterred by the facts, the so-called privacy advocates and government watchdogs (financed largely by the President’s supporters) recently bestowed a Transparency Award upon Obama. Come election time, it will undoubtedly be used to exemplify this administration’s achievements in the area of enhanced transparency. While the Transparency Award is resting next to the Nobel Peace Prize on the Presidential mantel, let’s examine the facts.

One of the government’s most despised agencies, the Department of Homeland Security, has been hard at work trying to steam-clean the wrinkly uniform of its public image. The House Committee on Oversight and Government Reform recently completed an 8-month investigation that exposed the DHS under Secretary Janet Napolitano of corrupting the agency’s FOIA compliance procedures, exerting political pressure on FOIA compliance officers, and undermining the federal government’s accountability to the American people.

A New Era of Openness? How and Why Political Staff at DHS Interfered with the FOIA Process
Sounds bad? Just wait, because it’s a lot worse than you might think. The DHS staff attempted to frustrate the Congressional investigation through official non-cooperation, tampered with witnesses and even tried to steal Committee documents. Yes, you’re reading this right. After a witness interview on March 4, 2011, Reid Cox (one of the DHS lawyers) stuffed Committee’s exhibits into his bag and headed straight for the door. Republicans and Democrats alike protested that the Department’s attorney couldn’t leave with the Committee’s exhibits. Cox disagreed and kept on going. The report noted, “Any attempt to steal Committee documents is a serious matter. If the motive for stealing Committee documents is to use them to conduct a forensic investigation to identify a Committee source, it creates an extremely sensitive situation. The Department was notified that any future efforts to remove documents would not be tolerated.”

In a March 4, 2011 e-mail to the DHS’ Assistant Secretary for Legislative Affairs Nelson Peacock, members of the Congressional committee stated: “(W)e have had some bizarre exchanges with your lawyers. They keep trying to steal the exhibits we show the witnesses.”

What was in those exhibits that the agency is so determined to hide? Some of the highlights include the evidence that career FOIA professionals at the DHS have been stymied in their statutory compliance by the unprecedented intrusion of Napolitano’s political appointees, also known as the “Front Office” staff (Noah Kroloff, John Sandweg, Amy Shlossman, Julia Fox and Jordan Grossman). Chief Privacy Officer and Chief FOIA Officer is another one of Napolitano’s political appointees, Mary Ellen Callahan.
In 2010, the writer of this article was reporting on Janet Napolitano’s testimony before the United States Senate Subcommittee on Homeland Security Appropriations. During the hearings, Napolitano repeatedly turned to her unimpressively lethargic staff for answers. Shrugging their shoulders, time and time again, they had nothing to offer. In return, Napolitano parroted their responses to members of the Congress, stating “I’ll have to get back to you on that later.”

The “Front Office” appointees don’t show much respect for either FOIA or agency personnel who intend to comply with the Act’s requirements. As the report reflects, “by July 2009, Amy Shlossman and the rest of the political appointees in the Office of the Secretary had effectively ground the Department’s FOIA operation to a halt. By burdening the FOIA Office with unnecessary questions and ignoring their concerns, the Secretary’s political staff created a problem that did not exist during the previous Administration.”

The documents show that the Secretary’s political staff attempted to edit and amend responsive documents to avoid embarrassment. For example, they insisted upon changing the original document and then submitting the amended version in response to the FOIA request. Career FOIA staff refused to let that happen and informed the “Front Office” staff that they would “under no circumstances alter agency records before they are released to “avoid embarrassment.” The career FOIA staffer was “never forgiven” for this by Mary Ellen Callahan, who refused to speak to her ever again. In December 9, 2010 e-mail exchanges between Napolitano’s political appointees, Callahan complained to John Sandweg about career FOIA staffers, stating “Are you f#*^ kidding me?” and “I have idiots for staff.”

After repeated interference by Napolitano’s political staff with the processing of FOIA requests, the career FOIA staffer offered to meet with the “Front Office” bunch to explain how the release of documents is supposed to work. Napolitano’s cronies saw it as a joke and their e-mails were included in the evidence with which Cox raced to the door. Napolitano’s appointee Amy Schlossman wrote to her colleague John Sandweg, “This woman is a lunatic. You have to attend this mtg–if nothing else, for the comic relief.”
Aggravated with the very idea of learning how FOIA is supposed to work, Amy Shlossman wrote to Jordan Grossman, “This is their [FOIA staff] f*@#^ meeting!!!!!” (the f-bomb appears in all its glory in various e-mail communications fired off by Napolitano’s belligerent appointees). During the meeting with professional FOIA staffers, Napolitano’s Front Office bunch was bored silly. The staffer giving the presentation was kicked under the table to “move it along”, because Amy Schlossman “was bored and looking at her Blackberry”. When asked during the Congressional inquiry what she remembered about the meeting, Amy Schlossman couldn’t recall anything. How surprising.

The Congressional Report details that “Shlossman responded she could not remember, was unaware of, or simply did not know the answer to a question from Committee investigators 79 times during the course of her four-hour interview. Additionally, Shlossman left the interview room six times to confer with counsel, including twice when she was presented an exhibit in the middle of a round of questioning. Having not objected to a single question asked to the three prior witnesses whose interviews were attended by DHS counsel, Deputy General Counsel Joe Maher objected 11 times during Shlossman’s interview. The behavior of the witness and counsel during Shlossman’s interview gave Republican staff present the impression that her testimony was intentionally vague on the advice of counsel.”

Our rights under FOIA are such an inconvenience to the DHS. Anyone who threatens to expose the Agency’s woeful practices pays a heavy price. While the government doesn’t want you to know much about them, they are definitely interested in learning more about you. Making FOIA requests can get you red-flagged and investigated. As the AP reported, “Career employees were ordered to provide Secretary Janet Napolitano’s political staff with information about the people who asked for records – such as where they lived, whether they were private citizens or reporters – and about the organizations where they worked. If a member of Congress sought such documents, employees were told to specify Democrat or Republican.” Every single media request was tagged for the “Front Office” review.

Napolitano’s political appointees lied to Congress and refused to acknowledge that approval from the Secretary’s political staff was required to release a response to a significant FOIA request. In fact, it was. They still get the first crack at the decision as to whether or not FOIA requests are honored. The Congressional report details that the career staffers in the FOIA Office “was not permitted to release responses to these requests without approval from political staff”. To hide their inappropriate activities, the DHS stopped using e-mail and conducted such political approval procedures over the telephone. They were also doing their best to avoid the word “Approval”, replacing it with such cute little terms as “Awareness,” “Good to Go,” “Affirmative Statement,” “Give the Thumbs Up” and “Active Concurrence”. In spite of their effort to obfuscate the facts, they were caught red-handed, courtesy of courageous whistleblowers.

Following the protocol in releasing such records to the requesters causes severe retaliation against the agency personnel. The DHS demoted Catherine Papoi (former deputy unit chief in charge of FOIA) for disclosing that the DHS had illegally sidetracked hundreds of FOIA requests from journalists, watchdog groups and private citizens. Whistleblowers and honest reporters are loathed by the current administration more than they ever were throughout the American history. The Congressional report determined that the DHS abused the (b)(5) exception “to prevent the release of embarrassing records”. Three out of four FOIA career staff interviewed by the Congressional Committee “have been transferred, demoted, or relieved of certain responsibilities”. In the mean time, all of the “political appointees who came to the Department early in 2009 continue to have a significant role in the FOIA response process.”

The report determined that DHS regards FOIA to be “politically undesirable” and keeps a tight grip on the piggy-bank of information, hiding “abusive and embarrassing official behavior” to avoid “both the shame of public scrutiny and potential criminal prosecution”. The report states that maneuvering by the DHS “slowed a congressional investigation and interfered with the Committee’s access to witnesses. Obstructing a congressional investigation is a crime.”

18 U.S.C. § 1505 states, in pertinent part: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress — Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.” Unfortunately for all the truth-seekers, DHS officials don’t have to worry about being prosecuted for their crimes – after all, Eric Holder is too busy prosecuting whistleblowers.

Speaking of whistleblowers, Public Law 111 -117 § 714 states: “No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who – (1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee; or (2) removes, suspends from duty without pay, demotes, reduces in rank, seniority, stats, pay, or performance of efficiency rating, denies promotion to, relocates, reassigns, transfers, disciplines, or discriminates in regard to any employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee of the Federal Government, or attempts or threatens to commit any of the foregoing actions with respect to such other officer or employee, by reason of any communication or contact of such other officer or employee with any Member, committee, or subcommittee of the Congress as described in paragraph (1).” In short, any federal manager who takes personnel action against a whistleblower for communicating with any member of Congress is not entitled to continue collecting a salary at the expense of American taxpayers. Does it work that way in real life? Ask 98% of whistleblowers who have lost their cases in courts.

Bill Holzerland, Associate Director for Disclosure Policy and FOIA Program Development, testified before Congress, “All in all, I would say no, there is not more transparency.” The DHS is determined to ensure that you find out only what they want you to know. The Agency’s skewed perspective of “What you don’t know can’t hurt you” doesn’t work, because in this scenario the lack of transparency can and does hurt us as a nation. The report concludes that “The extent of the mismanagement of the FOIA function at DHS calls into question the competence and commitment of high-level staff charged with protecting the homeland from serious threats.”

My suggestion would be that the DHS apply to itself the same theory it attempts to sell to every freedom-loving American: “If you have nothing to hide, you should have no problem with being watched.” Isn’t that right, DHS? Step into the scanner of public opinion and don’t forget to remove your shoes.

Testimony of Mary Ellen Callahan, Chief FOIA Officer and Chief Privacy Officer, Privacy Office, Before the United States House of Representatives Committee on Oversight and Government Reform on "Why Isn't The Department of Homeland Security Meeting The President's Standard on FOIA?"
Release Date: March 31, 2011
Rayburn House Office Building
LINK

Good morning Chairman Issa, Ranking Member Cummings, and distinguished Members of the Committee. My name is Mary Ellen Callahan. I am the Chief FOIA Officer and Chief Privacy Officer at the Department of Homeland Security. My office administers policies, programs and procedures to ensure that the Department complies with the Freedom of Information Act (FOIA)1 and the Privacy Act,2 respectively. I appreciate the opportunity to appear before you today to discuss the Department of Homeland Security's (DHS) FOIA process and policy both past and present and to clarify misconceptions regarding the Department's significant FOIA review process.
DHS has approximately 420 full time equivalent federal employees devoted to processing FOIA requests, and we take our mission of openness and responsiveness very seriously. As I stated in my written testimony to this committee last year,3 these FOIA professionals have done an extraordinary job in addressing FOIA backlogs as well as engaging in an unprecedented initiative to proactively disclose frequently requested records and items of public interest.
Two years ago, the Department faced a backlog of more than 74,000 FOIA requests. Under this Administration, we have reduced the backlog by 84 percent, or more than 63,000 requests. In fiscal year (FY) 2010 alone, DHS reduced its backlog by 40 percent, eclipsing both the government-wide Open Government Directive's instruction to reduce the FOIA backlog by 10 percent each year, as well as DHS's own Open Government Plan's goal of a 15 percent reduction for the fiscal year. In those past two years, we also reduced the average time it takes to process FOIA requests in our system by 58 percent, from 225 days to 95 days. Remarkably, we have been able to reduce this backlog, and accelerate response times, while processing an incredible number of new FOIA requests. In FY 2010, DHS received 130,098 FOIA requests - more than any other federal department, and 22 percent of all FOIAs received by the federal government - and processed 138,651 requests, also more than any other federal department.
In FY 2010, of those more than 138,000 requests processed, approximately one half of one percent were deemed 'significant' by career FOIA officers according to standards established at the Department in 2006 regarding major FOIA requests that may have a significant public interest. Examples included requests involving significant ongoing litigation, requests relating to sensitive topics, requests made by the media, and requests relating to Presidential or agency priorities. In these relatively few cases, senior Department management was provided an opportunity to become aware of the contents of a release prior to its issuance to the public, primarily to enable them to respond to inquiries from members of Congress and their staffs, the media, and the public and to engage the public on the merits of the underlying policy issues. I am not aware of a single case in which anyone other than a career FOIA professional or an attorney in the Office of the General Counsel made a substantive change to a proposed FOIA release. Further, to my knowledge, no information deemed releasable by the FOIA Office or the Office of the General Counsel has at any point been withheld and responsive documents have neither been abridged nor edited.
The roots of this significant FOIA policy lie not with this Administration, but with its predecessor. Beginning in 2005, the DHS FOIA office began identifying significant FOIA requests pursuant to objective standards4 and providing notice of them to senior Department management in a weekly report. In 2006, submission guidelines for what constituted a ‘significant FOIA' request were officially established by the DHS Privacy Office, and the current Administration has basically followed suit.5
Discussion between the Privacy Office and senior Department management about how to increase awareness of significant documents began after several significant FOIAs were released at the beginning of the new Administration without notice to senior management. These significant FOIA responses related to ongoing litigation, records from the previous Administration, and records from other Departments, among other issues. This basic lack of awareness of significant FOIA responses presented challenges to the Department's ability to effectively respond to inquiries from the media, Congress and the public, inhibiting senior leadership's ability to fulfill its responsibility to manage the Department and to engage the public on merit-based discussions related to the associated policy issues.
As a result, the Department developed a process during the fall of 2009 by which senior Department management were made aware of significant FOIA requests and planned releases. As explained above, the determination of which FOIA releases were deemed significant and thus subject to this awareness process were made by career FOIA officials. While the review period was set at three days, that goal unfortunately was not always met due to the urgency of other priorities and some FOIA releases were delayed. This was particularly true in early 2010, in the wake of the attempted terrorist attack on Christmas Day and other incidents that necessarily drew the attention of senior management away from regular day-to-day activities and deadlines.
In the spring of 2010, recognizing that enhancements to this review process were needed to ensure that the appropriate awareness was provided to senior management in a manner that allowed prompt processing of FOIA requests, Departmental leadership and the Privacy Office collaborated to develop an improved system. Under this improved system, significant FOIA releases are uploaded to an online intranet-hosted, role-based SharePoint site to which senior Department management have read-only access, originally three days in advance of release. This was done in order to allow officials from the Department's offices of Legislative Affairs, Public Affairs, Intergovernmental Affairs, and the Office of the Secretary to review the documents simultaneously, and when inquiries are made. FOIA responses are automatically sent out after the review period has expired, unless one of the reviewers or a FOIA officer identified a problem with the FOIA response. To my knowledge, the identification of inconsistencies or inappropriate redactions or disclosures has occurred only a handful of times in the nine months since the SharePoint notification system was implemented.
To my knowledge, at no point during this awareness review process did anyone other than a career FOIA professional or an attorney in the Office of the General Counsel make a substantive change to a proposed FOIA release or a substantive determination regarding what should be released or redacted. While there is no doubt that this awareness review at times took longer than anticipated, the issue of delay in responding to some FOIA requests must be evaluated in its larger context. Since the implementation of this awareness policy, the average number of days it takes the Department to process a FOIA request has decreased significantly – from 240 to 95 days, a record of which the Department is rightfully proud.
Despite some management challenges in developing this new system, we believe significant progress has been made by establishing the SharePoint site. We have continually tried to improve this process to ensure the Department is as responsible and responsive as possible. We have been and remain mindful of the Attorney General's March 2009 guidance that "open government requires agencies to work proactively and respond to requests promptly" and that "responsibility for effective FOIA administration belongs to all of us—it is not merely a task assigned to an agency's FOIA staff." (emphasis mine)
In fact, we continue to improve the system; DHS has now moved to a one-day awareness review for significant FOIA responses. Substantive determinations regarding application of FOIA law and exemptions will continue to be made by FOIA professionals or attorneys in the Office of the General Counsel.
We are proud of the strides we have made in this effort, but we also acknowledge that there is always room for improvement; we welcome the Committee's suggestions to improve our process. To best facilitate any recommendations from the Committee, let me set forth our current procedure for responding to all FOIA requests:
DHS receives a request for information under the FOIA.
The request is logged by the relevant component FOIA office, and reviewed for compliance with DHS regulations and to ensure it reasonably describes the records sought (i.e., that it is perfected). If the request is not perfected, the FOIA professional corresponds with the requester to seek clarification of the scope of the request; once the request is perfected, the FOIA professional sends an acknowledgement letter to the requester.
Career FOIA professionals then determine whether or not the request is significant using criteria and factors that have not changed materially since 2006.
Information about significant requests, including the actual request letter and a summary, is submitted to my office – the DHS Privacy Office – which consolidates significant requests and reports them to DHS senior management on a weekly basis for awareness.
The relevant FOIA Office tasks out the request to a component, group or subject matter expert(s) within the Department who may have responsive federal records according to the information requested and the scope covered.
Federal records from the subject matter experts or identified parties that are responsive to the request are returned to the FOIA Office from which it was tasked.
Career FOIA professionals review the response and identify appropriate legal exemptions (for law enforcement, national security, privacy and pre-decisional considerations, among other things as defined in the law).
After the DHS subject matter expert (custodian of the federal records) confirms the final response is appropriate, the FOIA professional then prepares the information for release – including a letter and explanation of various exemptions.
In many DHS components and offices, attorneys from the Office of the General Counsel review the proposed response prior to release to confirm that all redactions and disclosures are being made appropriately.
FOIA releases are reviewed and approved by a FOIA manager.
Non-significant FOIA releases (99.5 percent of releases) are released to the requester. Significant FOIA releases are uploaded into a SharePoint system for a limited awareness review period – now one business day – and then automatically released by the relevant component FOIA office back to the requester.
In conclusion, it is my sincere hope that through the Department's actions to date – including implementing a FOIA process that leads the federal government in disclosure – and by appearing here today we will clear up any lingering misconceptions on this topic. As is the case at any agency, establishing new procedures is not always seamless and sometimes minor delays are unavoidable as you seek to fine-tune processes. These refinements have helped us establish the current system, which is more effective in confirming that FOIAs are processed in a timely manner while ensuring that senior management is made aware of significant FOIAs. The Department understands that a strong, collaborative relationship with Congress is crucial to the overall success of the Department and we look forward to working with the Committee to further refine and develop our FOIA processes. I welcome your recommendations and would be happy to answer your questions.
1. 5 U.S.C. § 552.
2. 5 U.S.C. § 552a.
3. This testimony is available click herewww.dhs.gov/ynews/testimony/testimony_1301424145007.shtm.
4. All DHS Privacy Office memoranda on significant FOIA requests are available in the DHS FOIA Library
5. The 2006 Submission Guidelines The 2009 guidelines
This page was last reviewed/modified on March 31, 2011.