CBP UAS authority memos

Shawn Musgrave filed this request with the United States Customs and Border Protection of the United States of America.
Tracking # CBP-AP-2015-003332
Status
Rejected

Communications

From: Shawn Musgrave

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

From: MuckRock.com

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.

From: 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.

From: Shawn Musgrave

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

From: MuckRock.com

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.

From: CBPFOIA@cbp.dhs.gov

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d2802a23d5)
* Tracking Number: CBP-2014-030727
* Requester Name: Shawn Musgrave
* Date Submitted: 06/09/2014
* Request Status: Submitted
* Description:
"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)."

From: SUZUKI, SHARI

Mr. Musgrave,

I just wanted to let you know that I received 5 appeals from you based on the lack of response by CBP. After reviewing each of the initial requests that formed the basis for the appeal as well as the FOIAOnline database used by CBP's FOIA Division to track initial request - it appeared that these 5 initial requests were never received by CBP. I have opened them as initial requests and their case numbers can be found below:

2014-030741 "Sec 501 Report on airspace restrictions for use of unmanned aerial vehicles along the border of the United States and Mexico."

2014-030734 "Guidelines that determine whether individuals are detained at the border for additional questioning."

2014-030730 "Database of illegal air interdictions in all border states from FY2000 to the date this request is processed."

2014 030726 "All responsive documents from CBP2012FOIA16372"

2014 030727 "legal authority for CBP to conduct UAS missions and provide support to other agencies."

I did not open these as appeals since the initial requests were never received by CBP.
Regards,
shari

Shari Suzuki, Chief
FOIA Appeals, Policy & Litigation Branch
Regulations and Disclosure Law Division
Office of International Trade
U.S. Customs & Border Protection
90 K Street NE
Washington DC 20229-1177
Direct Dial 202.325.0121
Fax 202.325.0152

From: Shawn Musgrave

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

From: SUZUKI, SHARI

Shawn,

I am not part of the "CBP FOIA office" (ie, FOIA Division)- I am the appeals office (a separate and distinct office). I don't know what to say about FOIA Division's fax machine. If it isn't in the FOIAOnline system - it is difficult to say it was received. If you have emails that show that someone from CBP actually received your request - I would be interested in seeing them.

Is there a reason that you prefer to file via fax as opposed to the FOIAOnline system?
Regards,
Shari

Shari Suzuki, Chief
FOIA Appeals, Policy & Litigation Branch
Regulations and Disclosure Law Division
Office of International Trade
U.S. Customs & Border Protection
90 K Street NE
Washington DC 20229-1177
Direct Dial 202.325.0121
Fax 202.325.0152

From: Shawn Musgrave

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

From: SUZUKI, SHARI

Shawn,

I am sorry to hear about the problems you have experienced with FOIA Division. I am happy to receive your appeals via email (my emailbox is fine).
Regards,
Shari

Shari Suzuki, Chief
FOIA Appeals, Policy & Litigation Branch
Regulations and Disclosure Law Division
Office of International Trade
U.S. Customs & Border Protection
90 K Street NE
Washington DC 20229-1177
Direct Dial 202.325.0121
Fax 202.325.0152

From: MuckRock.com

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.

From: SUZUKI, SHARI

Shawn,

As I mentioned previously, I handle appeals not initial FOIA requests. Technically, a requester should request status updates from FOIA Division (the office at CBP that handles initial requests) either via the FOIAOnline system or by phone. However, I understand that you have previously experienced problems contacting FOIA Division. I will forward your email to them.
Regards,
Shari

Shari Suzuki, Chief
FOIA Appeals, Policy & Litigation Branch
Regulations and Disclosure Law Division
Office of International Trade
U.S. Customs & Border Protection
90 K Street NE
Washington DC 20229-1177
Direct Dial 202.325.0121
Fax 202.325.0153

From: CBPFOIA@cbp.dhs.gov

The FOIA request CBP-2014-030727 has had its Tracking Number changed to CBP-OCC-2014-030727. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:
* Old Tracking Number:
CBP-2014-030727
* New Tracking Number:
CBP-OCC-2014-030727
* Requester Name:
Shawn Musgrave
* Date Submitted:
06/09/2014
* Long Description:
"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)."

From: MuckRock.com

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.

From: MuckRock.com

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.

From: MuckRock.com

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.

From: CBPFOIA@cbp.dhs.gov

The FOIA request CBP-OCC-2014-030727 has had its Tracking Number changed to CBP-2014-030727. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:
* Old Tracking Number:
CBP-OCC-2014-030727
* New Tracking Number:
CBP-2014-030727
* Requester Name:
Shawn Musgrave
* Date Submitted:
06/09/2014
* Long Description:
"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)."

From: CBPFOIA@cbp.dhs.gov

Your request for Fee Waiver for the FOIA request CBP-2014-030727 has been
denied.
Additional details for this request are as follows:
* Request Created on:
06/09/2014
* Request Long Description:
"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)."

From: CBPFOIA@cbp.dhs.gov

A search of CBP databases produced records responsive to your Freedom of Information Act (FOIA) request CBP-2014-030727. CBP has determined that the responsive records are partially releasable, pursuant to Title 5 U.S.C. § 552 and have applied the appropriate exemptions . You have a right to appeal our withholding determination. Should you wish to do so, you must send your appeal and a copy of this letter, within 60 days of the date of this letter, to: FOIAAppeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10 th Floor, Washington, DC 20229-1177 , following the procedures outlined in the DHS regulations at Title 6 C.F.R. § 5.9. Your envelope and letter should be marked " FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia The Office of Government Information Services (OGIS) also mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. If you wish to contact OGIS, you may email them at ogis@nara.gov or call (877) 684-6448. Please notate file number CBP-2014-030727 on any future correspondence to CBP related to this request.



Given the nature of this request, some records are only being released to you as the requester. If you have an account in FOIAonline, you may access those records by logging into FOIAonline. Otherwise, those responsive records will be sent via the method agreed upon with the FOIA processor. (https://foiaonline.regulations.gov:443/foia/action/public/home?objectId=090004d2802a23d5)

From: Shawn Musgrave

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

From: SUZUKI, SHARI

Mr. Musgrave,

I’ve opened an appeal for you in FOIAOnline. The case number is:

CBP-AP-2015-003332
Regards,
Shari

Shari Suzuki, Chief
FOIA Appeals, Policy & Litigation Branch
Regulations and Disclosure Law Division
Office of International Trade
U.S. Customs & Border Protection
90 K Street NE
Washington DC 20229-1177
Direct Dial 202.325.0121
Fax 202.325.0153

From: Shawn Musgrave

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

From: 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!

From: SUZUKI, SHARI

Negative. You’ve cut and pasted my email from this morning into the wrong email chain!

CBP-AP-2014-046953 is an appeal of CBP-2014-030741 (Sec 501 report)

CBP AP 2014-003332 is an appeal of CBP-2014-030727 (UAS legal authority).
Regards
Shari

Shari Suzuki, Chief
FOIA Appeals, Policy & Litigation Branch
Regulations and Disclosure Law Division
Office of International Trade
U.S. Customs & Border Protection
90 K Street NE
Washington DC 20229-1177
Direct Dial 202.325.0121
Fax 202.325.0153

From: MuckRock

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!

From: DHS Privacy Office Disclosure & FOIA Program

Good Day,
Attached is our acknowledgment of your DHS FOIA request.  If you need to contact this office again concerning your request, please provide the DHS reference number. This will enable us to quickly retrieve the information you are seeking and reduce our response time. This office can be reached at 866-431-0486.
Regards,
DHS Privacy Office Disclosure & FOIA Program
STOP 0655
Department of Homeland Security
245 Murray Drive, SW
Washington, DC 20528-0655
Telephone:  1-866-431-0486 or 202-343-1743
Fax:  202-343-4011
Visit our
FOIA website (http://www.dhs.gov/foia)

  • Department of Homeland Security FOIA 2015-HQFO-00101 Acknowledgment

From: Bureau of Customs and Border Protection

A letter stating that the request appeal has been rejected.

From: Shawn Musgrave

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

From: FOIA

Greetings Mr. Shawn

Please be advised that we do not open attachments for security purposes. Please resubmit your request with attachment in the body of email, via fax or USPS. Additionally, clarify which department the DHS Office of General Counsel referred your case to for a direct response if possible.

Regards,

The Privacy Office
U.S. Department of Homeland Security
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655
Phone: 202-343-1743 or 866-431-0486
Fax: 202-343-4011
E-mail: foia@hq.dhs.gov<mailto:foia@hq.dhs.gov>

This communication, along with any attachments, is covered by federal and state law governing electronic communications and may contain confidential and legally privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this message is strictly prohibited. If you have received this in error, please reply immediately to the sender and delete this message. Thank you.

From: Shawn Musgrave

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

=====

"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.

From: DHS FOIA

Good Day, Attached is our final response to your request.  If you need to contact this office again concerning your request, please provide the DHS reference number. This will enable us to quickly retrieve the information you are seeking and reduce our response time. This office can be reached at 866-431-0486. Regards, DHS Privacy Office Disclosure & FOIA Program
STOP 0655
Department of Homeland Security
245 Murray Drive, SW
Washington, DC 20528-0655
Telephone:  1-866-431-0486 or 202-343-1743
Fax:  202-343-4011
Visit our FOIA website

  • Department of Homeland Security FOIA 2015-HQFO-00101 Final Response

Files

pages

Close