October 7, 2016[IH1]
Freedom of Information Policy Office U.S. Department of Homeland Security 245 Murray Drive SW STOP-0655 Washington, D.C. 20528-0655[IH2]
RE: FOIA Request Number 2016-IAFO-00220[IH3]
To Whom It May Concern:
I write on behalf of Color of Change (“COC”) and the Center for Constitutional Rights (“CCR”) (collectively “the Requesters”) concerning our July 5, 2016 FOIA request, referenced above, and in response to a letter received via email from the Office of Intelligence & Analysis (“OIA”), a component of the Department of Homeland Security (“DHS”), dated September 20, 2016 (but not received by COC until September 27, 2016). [IH4] The letter purports to be OIA’s final response to COC’s requests. See Exhibit A (attached hereto without documents produced with the response) (“OIA Final Response”). COC therefore hereby appeals to DHS from the OIA Final Response for the following reasons[IH5] .
First, OIA’s searches of information regarding monitoring and surveillance of public protests surrounding police violence, police reform, racial justice, criminal justice, and the Black Lives Matter movement were inadequate. OIA’s letter stated that it had conducted a comprehensive search but failed to provide any information describing how the search was conducted.[IH6] FOIA requires DHS to conduct a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). [IH7] OIA’s failure to produce any documents, coupled with its failure to provide any information regarding the search it may have undertaken, renders its response inadequate. DHS has not indicated what search terms were used, which databases were searched, or any other information which would enable requesters to assess or challenge the adequacy of the search.[IH8]
Second, OIA’s Final Response states that “Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA.” To the extent that these statements suggest that OIA is not required to produce any records regarding law enforcement and national security or that may fall under certain FOIA exemptions, OIA has erred. 5 USC § 552(b) requires that records be produced, in redacted form if necessary, and that agencies indicate what portions they believe are exempt and why. [IH9] The government must produce responsive records and “reasonably detailed explanations of why material was withheld.” Halpern v. FBI, 181 F.3d 279, 295 (2d Cir. 1999). [IH10] Should DHS have responsive records, it is required under FOIA to produce them, and at most be allowed to redact any protected language and justify such redactions through invocations of statutory exemptions, not withhold it altogether.
Finally, DHS failed to reference any searches regarding the Office of Public Affairs or any other component of DHS, such as the Office of Operations Coordination, Federal Emergency Management Agency, or any other appropriate offices and departments within DHS that relate to the FOIA request. We understand that those components of DHS have failed to make a determination on our request.[IH11]
Thank you for your attention to this matter. Please direct any responses to: Evan Feeney at [ADDRESS] or by mail to Evan Feeney, Color of Change, [ADDRESS]
Sincerely,
Evan Feeney
Media Justice Campaign Manager
ColorOfChange
On Behalf of the Requesters