|Submitted||Sept. 21, 2017|
|Est. Completion||Oct. 20, 2017|
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Dear FOIA department:
This is a FOIA request for all records described by 5 U.S.C. § 552(a)(1, 2), as well as processing records for this request itself.
In particular, I request:
a) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
b) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
c) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
d) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
e) each amendment, revision, or repeal of the foregoing.
… except that you may, at your discretion, exclude records published in the Federal Register.
a) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
b) those statements of policy and interpretations which have been adopted by the agency;
c) administrative staff manuals and instructions to staff that affect a member of the public;
d) copies of all records, regardless of form or format that have been requested 3 or more times; and
e) a general index of the records referred to under subparagraph (D); and
f) current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and identified in paragraphs (A)-(E)
… except that you may, at your discretion, exclude records published in the Federal Register, or available on your online FOIA reading room.
For the purposes of this request, all terms above have the same meaning as they do in 5 U.S.C. § 552(a)(1, 2).
I also request:
3. all records relating to the fulfillment of this request
This part of the request is to be processed only AFTER you have completed processing all of the above parts. Do not conduct any search for records under this part earlier than that.
This part does not request that you create any new record; rather, it requests the records that you will have created in processing the above parts, and will therefore exist before you conduct the search for this part. See McGehee v. CIA, 697 F. 2d 1095, 1100-05 (D.C. Cir. 1983) (agency must use time-of-search cut-off date, not time-of-request).
For all responsive records, I also request:
1. all parts of the record (i.e. no portion of a record with some responsive portion may be considered "non-responsive");
2. all versions of the record, whether or not currently in use;
3. all record metadata, such as dates on which they were drafted, passed, went into effect, withdrawn, or similar events; person(s) / office(s) responsible; authors; IDs; revision numbers; etc.;
4. a detailed index of all claims of exemption/privilege, regardless of whether the record is claimed to be exempt in whole or in part;
5. access to inspect the record directly, in its native electronic format; and
6. if any classification applies, mandatory declassification review (MDR) under E.O. 13526, and the result of the MDR, including any declassified records.
For all requests above, the "cut-off date" is, at the earliest, the date that you conduct the search.
Please note that this request is made after the enactment of Public Law No. 114-185, S. 337 (114th), the FOIA Improvement Act of 2016 (FOIA IA). The revised statute, as specified in the FOIA IA, applies to this request. FOIA IA § 6. In particular, please note that:
1. you must provide electronic format documents, §§ 552(a)(2) (undesignated preceding text), 552(a)(2)(E) (undesignated following text), 552(a)(3)(B), and 552(a)(3)(C);
2. you may not specify an appeal duration less than 90 days, § 552(a)(6)(C)(A)(i)(III)(aa);
3. you may not withhold any record unless "the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b), or disclosure is prohibited by law", § 552(a)(8)(A)(i);
4. you must segregate and partially release records where possible, §§ 552(a)(8)(A)(ii) and 552(b) (undesignated matter following (b)(9)); and
5. you may not claim deliberative process exemption for records more than 25 years old, § 552(b)(5).
This request specifically excludes providing me with new copies of any records which have been already provided to me or published online for free (e.g. on the agency's online "reading room"), in full or identically to the form that would be provided to me under this request (i.e. with exactly the same format, redactions, and claimed exemptions).
This is only an exclusion on providing records under this request that are identical to those already provided to me or available online, and only if I am or have already been provided a link to the online version (if "available online").
This exclusion is only intended to limit unnecessary duplication or provision, not to limit what records are responsive to this request, nor to permit failure to disclose the location of a responsive record available online. If this exclusion would in any way increase the cost or duration to respond to this request, it is to be ignored to the extent it does so.
This request is to be treated as separate from all others that I have filed.
Please forward this request to the FOIA office of every agency component and subcomponent that may have responsive records for independent processing, with a copy to me.
This request includes any records held jointly by your agency in conjunction with any other agency and/or department, in interagency and/or interdepartmental systems of records, or by other agencies or third parties (including contractors) acting pursuant any agreement with your agency.
With the possible exception of the index of records claimed to be exempt or privileged, this request does not ask you to create new records. If you determine that a response would require creating a new record that you do not want to create, please first contact me by email with an explanation of what records you have that would most closely match the information requested and might be acceptable substitutes, so that we can reasonably tailor the request.
In particular, I specifically request that you do not create new documents in response to this request that are modifications of a digital record, such as page-view images, print views, scans, or the like. No such creation or substitution is authorized by FOIA or the Privacy Act.
However, if the same or similar records are held in both electronic and paper formats, this request includes both the paper and electronic versions. The paper version and the digital version are distinct records, and each may contain distinct information such as handwritten or other markings on the paper copy and embedded metadata in the electronic version.
Furthermore, to the extent that the native electronic format is proprietary or otherwise not in format accessible by widely available, open source software, I request that you also provide an export of the proprietary format into a standard, open format, as described below.
Please note that the FOIA requires you to service the maximum extent of my request that can be done via e.g. partial redaction of exempt material. If you believe some portions of a record to be exempt because it contains Sensitive Security Information (SSI, 49 CFR 15, 1520) or classified information (18 USC 798), please provide a version of the record redacted to the minimum extent necessary to remove exempt information (e.g. per 49 CFR 1520.15), along with adequate information to describe the reason for each specific exemption.
In order to help tailor my request, please provide an upfront estimate of the time and cost it will take to complete this request, broken down any significant factors that would affect cost to service, number of records in each category, and your estimate of how many records in the category are likely to be exempt.
Please provide me with incremental updates, with updated estimates for fulfillment of the remainder, rather than having the entirety of the request be blocked until fully completed.
In accordance with 5 USC 552(a)(3)(B, C) (E-FOIA), Rehabilitation Act § 508, and FOIA IA, please respond using native format, electronic, machine-processable, accessible, open, and well structured records to the maximum extent possible. This means, e.g.:
* native format records rather than PDFs or other conversions (note above re providing both native electronic records and scans of paper records, if both exist);
* individual files per distinct source record (e.g. one .msg file per email), named clearly using the record's identifier, title, and date, rather than a single file containing multiple concatenated records;
* records compliant with the Rehabilitation Act § 508, 36 CFR 1194.22, USAB ATBCB-2015-0002, and ISO 14289-1;
* fully digital text records rather than scans, rasterizations, or OCR;
* complete electronic records, as held on any computer (including phones, servers, backup servers, mail servers, workstations, etc.), including all headers and attachments, fully expanded e-mail addresses, full addresses for address "aliases", full lists for "distribution list" aliases, all embedded and external metadata, complete bitwise digital copies of the original file, all file headers, and all other file content;
* blackout rather than whiteout redactions, with every redaction marked with all exemption(s) claimed for that redaction;
* digital redactions rather than black marker or rasterization;
* lists and structured data as machine-processable spreadsheets (e.g. CSV, SQL, XSL) rather than word documents (e.g. DOC, PDF, TXT, RTF) or partial printouts (e.g. PDF);
* open format records (e.g. PDF, AVI, MPG) rather than proprietary format records (e.g. WordPerfect, Microsoft Advanced Systems Format (ASF)) (note above re providing both original, proprietary format records and open format records);
* scans rather than paper copies;
* digital audio/video files rather than physical tapes;
* upload to your Electronic Reading Room (or other publicly accessible server) rather than personal transfer (for all items other than the item requesting records related to me or my requests);
* email or (S)FTP file transfer rather than CD;
* email correspondence rather than physical mail; etc.
Multiple files may be sent in a combined, compressed form using standard ZIP, TAR, GZIP, BZIP2, and/or RAR formats, or sent as separate files, at your discretion.
However, do not use a password on any files, including ZIP files etc. If a password was present in the native format, leave it unaltered, send me the password.
If there are any files you prefer not to transfer by email (e.g. if they are more than 10MB), please upload them to me via the link listed below my signature.
Doing so is secure, completely free to you, and the files uploaded will go to me directly.
Please note that this request does not request that you physically "duplicate" records, as I do not want you to create any paper or other physical copy for me — I only want electronic versions (or scans, for records that are not fully available in electronic form). As such, I expect there to be no duplication related costs.
Furthermore, I specifically request access for inspection of the records, including direct electronic access, in native format, to any electronic records.
I am not currently willing to pay for servicing this request. I may be willing to pay if it is necessary; please send a detailed explanation of the costs and their statutory justification, and service the maximum extent of the request that can be done for free in the meantime.
I request that, pending fee waiver determination or appeal, you proceed with this request as if it were in the "other non-commercial requester" category.
This request is a qualified request for journalistic, public interest purposes (entitling me to fully waived fees). As such, I request public interest fee waiver and journalistic fee waiver.
1. I have no commercial interest in these records.
2. I am a representative of the news media and entitled to waiver of all search fees.
I intend and am able to host and publish all received records online to the general public at no charge, as well to publish highlights, analyses, summaries, commentaries, and other creative, original journalistic work about responsive records through multiple online publications, such as https://plus.google.com/+saizai, https://twitter.com/saizai, and https://s.ai/foia (among others).
I also have a standing agreement with BoingBoing to publish articles about these matters, under my byline, on boingboing.net.
I have previously made journalistic publication, extraction, commentary, and analysis based on my FOIA/PA requests, e.g. relating to TSA, DHS, DOJ, and USPS activities, which have gotten widespread public interest, attention, and comment, and resulted in secondary journalistic publications based on my original work. This includes publications such as The New York Times, Forbes, Bloomberg/BNA, ABC News/Fusion, RT America News, RightThisMinute, and BoingBoing. I intend to do the same with this request.
3. The records are of significant public interest, entitled to waiver of all duplication fees, since
a) as above, I both am able and intend to disseminate the files widely;
b) they would contribute greatly to the public understanding of the operations and activities of your agency, in that they are records that directly describe agency operations and activities, as well as the issues and matters described at the top of this letter;
c) they are not currently readily available;
d) their existence constitutes prima facie evidence of your agency's violation of Congress' explicit command in 5 U.S.C. § 552(a)(1, 2) that your agency publish all the primary requested records; and
e) Congress has statutorily mandated that they be published freely, i.e. made a statutory finding that they are records of such significant public interest that they must be published without any request.
4. As mentioned above, I am explicitly not asking for any physical duplication, but rather direct server-to-server file transfer or email (or posting on your website). The FOIA authorizes duplication fees strictly limited to your agency's actual costs, and mandates that your agency use the cheapest available requested methods. I consider the actual costs for server-to-server file transfer to be reasonably estimated by, e.g., Amazon S3's pricing (https://aws.amazon.com/s3/pricing/).
If you have any questions or updates about this request, please contact me by email.
Please ensure that all of your responses comply with § 508 of the Rehabilitation Act, 36 CFR 1194.22, and UESB NPRM ATBCB-2015-0002.
In particular, please make all correspondence pursuant to this request — including notification and responsive records — by email, with native electronic format records, as specified in the request. I do not authorize you to send anything to me by physical mail unless I specifically state otherwise.
My email address is sufficient for all response to this request, and I can provide you with free means of electronic transfer for records too large to email.
Do not respond using ZixCorp "Secure Mail" or any other method that "expires" records from being available. Use only actual email and direct attachments, unless I explicitly request otherwise.
Please let me know your tracking number(s) for this request upon receipt, as well as your specific estimated completion date. 5 USC 552(a)(7).
If you believe that any of the requested items are not reasonably described, or that you need any further information regarding my qualification for fee waivers, please be specific about what you consider vague and what questions I can answer that would clarify them.
This request is made via MuckRock. You may provide responsive records either directly to me (see below my sig), or via MuckRock, as described below.
Sai (Note: Sai is my full legal name; I am mononymic.)
President, SaiCorp, Inc.
SaiCorp is an organization devoted to public interest journalism, government transparency and accountability, individuals' civil rights, and related issues.
NOTE: This request is made on behalf of both myself, Sai (in personal capacity) and SaiCorp, Inc. (in official capacity).
Phone: +1 510 394 4724 (please leave voicemail if I do not pick up)
Upload link: https://www.dropbox.com/request/kbR4D5SjIrVxm1eE4uHn
Other identifiers for search purposes: "Sai", "saizai", "SaiCorp", "saizai.com", "s.ai", "firstname.lastname@example.org", "email@example.com", "firstname.lastname@example.org", "email@example.com", "firstname.lastname@example.org", "email@example.com"
Physical mail: 500 Westover Dr. #4514, Sanford, NC 27330
NOTE: Do not physically mail responsive records without my explicit request. Send all records in native electronic form, as described above.
Thank you for your email. I appeal your response, and make a new request.
1. I request all processing records for 18-00010, as described in item 3 of my original request.
2. Your administrative closure is unlawful, and I appeal it.
See 5 U.S.C. § 552(a)(6)(A)(i) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538, and DoJ guidance available at <https://www.justice.gov/oip/oip-guidance/new_requirements_for_FOIA_response_letters_from_FOIA_improvement_act_of_2016>.
You provided less than 90 days to respond, and the statute does not provide for "administrative closure", only for responses. I interpret your response as a denial, and appeal it for violation of 552(a)(6)(A)(i).
3. For definitions and clarification of the terms used in my request, I refer you to the DoJ's FOIA Guide: https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proactive-disclosures.pdf
What I have requested is simply all records that are described by 5 USC 552(a)(1), (2), which you have not yet published in the FR (for (a)(1)) or either the FR or your online FOIA reading room (for (a)(2)), i.e. for which you have already violated the statute's affirmative requirement for proactive disclosure.
You need not respond as to any records which *are* properly published on the FR (for (a)(1)) or FR / online FOIA reading room (for (a)(2)).
Ideally, your response would be to certify that you have no responsive records because you have already published all of them — i.e. that you have fully complied with the proactive disclosure requirements.
However, if you have not, then my request requests all such records.
Your response fails to address whether or not you have any unpublished 552(a)(1),(2) records, and is therefore deficient.
Finally, your claim that Congress' statutory command to your agency is "not reasonably described" is foreclosed by statute, as you are already required to obey it, and the records I have requested are exactly those that you have not proactively disclosed despite Congressional mandate. If you wish to challenge the clarity of the statute's description, take it up with Congress, or file a lawsuit against the United States.