CBP: @ALT_USCIS account

Dear Sir or Madam,

I am a journalist working for The Daily Dot (www.dailydot.com), an online news publication. I am requesting records under the provisions of the Freedom of Information Act. 5 U.S.C.§ 552.

- Request:

All records referencing the Twitter account “@ALT_USCIS,” including communication records— submitted by email, by surface mail, by fax, by text message, by social media or in any other form, maintained by U.S. Customs and Border Protection (“CBP”)

Please include, but do not limit your search, to emails originating from, copied to, or received by any of the following federal employees: 1) John F. Kelly, Secretary of Homeland Security (“DHS”); 2) Kevin K. McAleenan, CBP Acting Commissioner; 3) Stephen P. Caruso, CBP Special Agent in Charge, (reportedly based in Miramar, Florida); and 4) Adam Hoffman, CBP Special Agent, Office of Professional Responsibility.

Please include any legal briefings or memos concerning the “@ALT_USCIS” Twitter account, or other so-called “alternative agency” or “alt agency” Twitter accounts. Please include any records related to, or referencing, any administrative summons issued by CBP or DHS to Twitter Inc. that mentions “@ALT_USCIS.”

- Request for Fee Waiver:

I am an investigative journalist working for The Daily Dot (www.dailydot.com), an online news publication founded in 2012. Under 5 U.S.C. § 552(a)(4)(A)(iii), I am entitled to a fee waiver on the grounds that disclosure of the information sought is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

- Request for Expedited Processing

FOIA states that “[e]ach agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records . . . in cases in which the person requesting the records demonstrates a compelling need; and . . . in other cases determined by the agency.” 5 U.S.C. § 552(a)(6)(E)(i). The statute further defines “compelling need” to mean either “that a failure to obtain requested records on an expedited basis . . . could reasonably be expected to pose an imminent threat to the life or physical safety of an individual,” or, where the requester is “primarily engaged in disseminating information,” that there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” Id. § 552(a)(6)(E)(v).

Therefore, expedited processing is to be granted when two conditions are met: First, the request must be made by an organization “primarily engaged in disseminating information.” See 5 U.S.C. § 552(a)(6)(E)(v)(II); See also: Al-Fayed v. CIA, 254 F.3d 300, 306 (D.C. Cir. 2001) (“Al-Fayed”). Second, the request must cover information about which there is an “urgency to inform the public about an actual or alleged federal government activity.” Id.

First, the Daily Dot is a “representative of the news media” because it “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into distinct work, and distributes that work to an audience.” Am. Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004).

Second, the D.C. Circuit Court has asserted that in determining whether there is an urgency to inform the public about government activity, and thus a “compelling need” for exigent disclosure, three factors are relevant: “(1) whether the request concerns a matter of current exigency to the American public; (2) whether the consequences of delaying a response would compromise a significant recognized interest; and (3) whether the request concerns federal government activity.” Al-Fayed at 306.

In 2013, a District Court in the D.C. Circuit noted that “courts have found a ‘compelling need’ to exist when the subject matter of the request was central to a pressing issue of the day.” The subject of that case, the Court found, was not a “matter of current exigency to the American public,” because the documents central to the claimaint’s case were related to a 2-year-old investigation and that media interest was limited. Wadelton v. Department of State, 13-0412 ESH, 2013 WL 1760853 (D.D.C. Apr. 25, 2013) (“Wadelton”).

In Al-Fayed, the D.C. Circuit court found that the issue of news coverage is especially critical to courts in determining whether a “compelling need” exists for expedited FOIA processing; The Court asserted that the “ultimate conclusion” with regards to expedited processing relies on important underlying facts, such as “the credibility of a claimant’s allegations regarding government activity, the existence of a threat to physical safety, or whether an issue is the subject of news coverage.” Al-Fayed at 308. (emphasis added).

In Wadelton, the Court noted that “[i]n cases where compelling need was found, plaintiff’s “cited numerous articles and reporters, including many in mainstream news sources such as the New York Times, the Washington Post, the Los Angeles Times, and/or the San Francisco Chronicle.”

Please see the follow stories, authored on Thursday, April 6, 2017, regarding the “@ALT_USCIS,” which is the subject of this FOIA request:

1) Mehrotra, Kartikay (2017, April 6). Bloomberg Politics. “Trump Sued by Twitter over Bid to Unmask @Alt-Agency Handle”. Retrieved from: https://bloom.bg/2p6HNC2
2) Fiegerman, Seth. (2017, April 6). CNN Tech. “Twitter sues government to stop unmasking of anti-Trump account". Retrieved from: http://cnnmon.ie/2nQBT7y
3) Ingram, David. (2017, April 6). Reuters. “Twitter refuses U.S. order to reveal user behind anti-Trump account”. Retrieved from: http://reut.rs/2oFKIW2
4) Tsukayama, Hayley. (2017, April 6). The Washington Post. “The government is demanding to know who this Trump critic is. Twitter is suing to keep it a secret.” Retrieved from: http://wapo.st/2niDkjf
5) Geidner, Chris. (2017, April 6). BuzzFeed News. “Twitter Sues Feds Over Attempt To Reveal Identity Behind @ALT_USCIS Account”. Retrieved from: http://bzfd.it/2niPQyY
6) Pierson, David. (2017, April 6). The Los Angeles Times. "Twitter sues to stop Trump's team from unmasking whoever runs this anti-Trump account". Retrieved from: http://lat.ms/2nQ03zc

- Certification:

The above information is true and correct to the best of my knowledge.

- Further Correspondence:

Please be aware that under 5 U.S.C. § 552(a)(6)(A), a FOIA request is considered constructively denied after twenty work days and is subject to an appeal on that basis.

If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. As the law requires, I will also expect you to release all segregable portions of otherwise exempt material.

All correspondence regarding this request can be directed to me at foiaquery@gmail.com. If you have any questions, do not hesitate to contact me at (469) 387-1810.

Finally, I request rolling production of these records as they are located and reviewed.

Thank you,

Dell Cameron

Please direct all further messages regarding CBP-OIT-2017-050371 to the email address: foiaquery@gmail.com

Thank you,