CBP UAS authority memos

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All memos, presentations or other guiding documents created by Customs and Border Protection (CBP), Office of the Chief Counsel or DHS, Office of the General Counsel from January 1, 2005 to the date this request is processed that outlines the legal authority for CBP to conduct UAS missions and provide support to other agencies (both federal and non-federal)

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Shawn Musgrave

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

Hello,

A copy of the below appeal for constructive denial has been sent to the indicated address. The CBP FOIA staff has repeatedly failed to acknowledge faxed requests. Please be advised that I will continue to appeal requests where CBP fails to provide acknowledgement or a tracking number, per its obligations under FOIA.

Respectfully,

Shawn Musgrave
MuckRock

==========

FOIA Appeals, Policy and Litigation Branch
U.S. Customs and Border Protection
90 K Street, NE, Washington, D.C. 20229

April 14, 2014

To Whom It May Concern:

This is an appeal of constructive denial for the request below.

This request has not been acknowledged since it was submitted on Jan. 10, 2014. Diagnostic records show that it was sent to the correct fax number and arrived there, as did followups sent on February 10 and March 13.

CBP has failed repeatedly to honor its obligations under FOIA to respond to or even acknowledged requests I have submitted by fax. I request that CBP process this request without delay.

Thank you,

Shawn Musgrave

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

Hello,

Thank you for entering these 5 requests of mine for processing. I reassert that our fax client repeatedly indicated that the CBP FOIA office received each of these requests. Additionally, on a number of requests CBP FOIA staff responded by email to followup questions, but refused to enter the requests as you have. As such, I consider it inappropriate to enter their receipt date as today.

I would be happy to provide documentation of these successful fax deliveries if that would help you assess the CBP FOIA staff's protocol for processing incoming requests.

Respectfully,

Shawn

Ms. Suzuki -

The FOIAOnline system does not interface with the MuckRock administrative system well -- we would vastly prefer to send requests by email rather than fax, given CBP's seeming issues with its equipment and the recordkeeping issues faxes pose. In any case, CBP FOIA staff has done its best to make it as difficult as possible to submit requests by any means other than FOIAOnline, despite the fact that its own FOIA procedures require the office to accept requests submitted by fax.

As such, we will continue to appeal requests for constructive denial should CBP continue to "not receive" requests submitted by fax. I am also pursuing the matter with OGIS.

Respectfully,

Shawn

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-2014-030727.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-OCC-2014-030727.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-OCC-2014-030727.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Jan. 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #CBP-OCC-2014-030727.

Thank you for your help.

Ms. Suzuki -

A copy of the appeal below has been sent by mail to the indicated address. I've attached the full denial sent by Ms. Pegues (cc'd) for your reference.

Best,
Shawn Musgrave
MuckRock

U.S. Customs and Border Protection
FOIA Appeals, Policy and Litigation Branch
90 K Street, NE, 10th Floor
Washington, DC 20229-1177

October 24, 2014

To Whom It May Concern:

This is an appeal for FOIA CBP-2014-030727, submitted to CBP on Jan. 10, 2014 and rejected in full by the attached letter on Oct. 23, 2014.

Foremost, I appeal the adequacy of the search conducted by CBP FOIA staff. After several months' delay in even acknowledging this request—despite several submissions—CBP FOIA staff indicate that they located a single page responsive to my request. Given that my request concerned a longstanding program around which there are a range of legal authority issues, I find such a paucity of records suspect.

Specifically, I requested: "all memos, presentations or other guiding documents created by Customs and Border Protection (CBP), Office of the Chief Counsel or DHS, Office of the General Counsel from January 1, 2005 to the date this request is processed that outlines the legal authority for CBP to conduct UAS missions and provide support to other agencies (both federal and non-federal)."

Given the duration of CBP's deployment of UAS along the border, as well as dozens of documented cases where CBP provided UAS support to other agencies, I am skeptical that there is but a single page outlining UAS legal authority issues. For instance, CBP has published its Privacy Impact Assessment (PIA) documents related to aircraft deployments along the border in full (see http://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp-aircraft-systems-20130926.pdf, for instance) — I presume that CBP legal counsel or other DHS legal counsel were involved in the PIA review process, and likewise assume that they took part in standard reviews of CBP authority to conduct UAS missions.

As such, I request that you remand this request back to CBP FOIA staff for a good faith search for responsive documents, per their obligations under the statute.

Additionally, I appeal the full denial of the single page as outlined in the attached letter. In denying release of the single located page, CBP relies on FOIA exemption 5, specifically suggesting that the document in question is covered under the Attorney Work-Product Privilege and the Attorney-Client Privilege. First, it is interesting that two distinct attorney privileges were invoked for a single page. The mere fact that an attorney produced or reviewed the document in question is not sufficient to invoke either of these privileges. Rather, the document must pertain to active litigation (work-product privilege) or confidential communications (client privilege). If the page in question is responsive to my request for memos addressing CBP's legal authority to deploy UAS along the border as well as to fly UAS on behalf of or in support of other agencies, neither privilege would apply, particularly if the page in question codifies CBP policy on the matter. Likewise, if the document summarizes CBP legal position, such attorney privileges are not applicable.

Finally, a full denial of a FOIA request is inappropriate if the document is able to be redacted and released in part. CBP's denial letter provides no justification as to why the document could not be redacted with regard to exempt portions of the document.

In light of the above, I request the immediate release of the single page identified to be responsive, in addition to a more thorough search for documents responsive to this request. The documents requested herein pertain to a standard procedure, namely the review of a government agency's legal authority to take an action. The Bureau of Customs and Border Protection's interpretation of its authority to fly UAS along national borders, as well as to fly drones in support of or on behalf of other entities, is a matter of fundamental public concern, and documents regarding this matter are appropriate for release to the public sphere.

Respectfully,

Shawn Musgrave
MuckRock

Hello Shari,

I'd like to clarify the appropriate appeal tracking number for the request CBP-2014-030727, which was specifically requesting:

"All memos, presentations or other guiding documents created by Customs and Border Protection (CBP), Office of the Chief Counsel or DHS, Office of the General Counsel from January 1, 2005 to the date this request is processed that outlines the legal authority for CBP to conduct UAS missions and provide support to other agencies (both federal and non-federal)"

I submitted the appeal on October 24, 2014 by email and by mail. On October 24, I received an email from you assigning the appeal the tracking number CBP-AP-2015-003332. Today I received another message from you assigning it CBP-AP-2014-046953. There may have been some confusion due to the dual manner of appeal submission or due to the multiple appeals that were submitted on the same day. Could you please help me straighten this out?

Thank you very much!

Hello Shari,

Thank you very much for the clarification! Each request is assigned a unique email address, so emails sent to the wrong email result in chains containing inappropriate information.

Have a wonderful weekend!

Hello,

Per the attached, the portion of this FOIA request regarding documents created by the DHS Office of General Counsel was referred to the Department for its direct response. To date, I have received no update as to this portion of this FOIA request.

Please advise.

Thank you,
Shawn Musgrave
MuckRock

Hello,

Please find the relevant portions of the December 11, 2014 response from CBP FOIA Appeals & Litigation Branch copied below. Please advise immediately as to the status of the portions of the request referred to DHS FOIA staff.

Best,
Shawn Musgrave

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"RE: Freedom of Information Act Appeal; CBP OCC & DHS OGC Memos re authorizations of UAS Missions

Dear Mr. Musgrave:

This is in response to your appeal of the reply you received from the US Customs and Border Protection (CBP) Freedom of Information Act (FOIA) Division to your initial request submitted on January 10, 2014, for "All memos, presentations or other guiding documents created by Customs and Border Protection (CBP), Office of the Chief Counsel or DHS, Office of the General Counsel from January 1, 2005 to the date this request is processed that outlines the legal authority for CBP to conduct UAS missions and provide support to other agencies (both federal and non-federal)

On October 32 [sic], 2014, the CBP FOIA Division responded to your request in a letter which informed you that they had retrieved a one-page record (subsequently corrected to refer to the record as a five-page record) which was
deemed responsive. That letter also informed you that CBP had characterized the record as one having been created for the agency by its attorney. Therefore it was deemed to fall within the type of records eligible for inclusion in the
description of attorney-client records or attorney work-product records. Either way, you were informed that CBP was withholding the record in its entirety pursuant to FOIA Exemption You have appealed this determination.

[....]

With respect to the second portion of your request for records created by the DHS Office of General Counsel we have referred that request to the Department for its direct response to you.