|Submitted||Nov. 27, 2013|
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November 27, 2013
To Whom It May Concern:
This letter constitutes a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and is submitted on behalf of journalist Alexa O’Brien.
I seek any and all documents in the Department of Defense Office of the Secretary and Joint Staff's possession that pertain to the WikiLeaks website or organization from January 2006 to the present date.
I am a “representative of the news media” for fee waiver purposes. See Project on Military Procurement v. Department of the Navy, 710 F. Supp. 362, 363, 365 (D.C.D. 1989). My work has been published in The Cairo Review of Global Affairs, Guardian UK, Salon, and featured by PBS Frontline, On The Media and Public Radio International. Based on my status as a “news media” requester, I am entitled to receive the requested record with only duplication fees asserted. Further, because disclosure of this information will “contribute greatly to the public understanding of the operation or activities of the government,” duplication fees should be waived.
There is a compelling need for the requested documents such that expedited processing is appropriate. I am engaged in disseminating information. There exists an urgent need to inform the public concerning actual or alleged Federal Government activity. As 5 U.S.C. § 552(a)(6)(E)(ii)(I) provides, I will anticipate your determination on our request within ten (10) calendar days.
I requests that in the event that access to any of the requested records is denied pursuant to 5 U.S.C. § 552(b), I be provided with all non-exempt portions which are reasonably segregable. I further request that you describe the deleted material in detail and specify the statutory basis for the denial as well as your reasons for believing that the alleged statutory justification applies in this instance. Please separately state your reasons for not invoking your discretionary powers to release the requested documents. Such statements will be helpful in deciding whether to appeal an adverse determination, and in formulating arguments in case an appeal is taken. I reserve my right to appeal the withholding or deletion of any information and expect that you will list the office and address were such an appeal can be sent.
I requests that documents responsive to this request be provided to me in electronic format on a CD-ROM.
Thank you in advance for your prompt attention to this request.
Ms. Alexa O'Brien
DEPT MR 9266
PO Box 55819
Boston, MA 02205-5819
Sent via email to: firstname.lastname@example.org
Dear Ms. O'Brien:
This is in response to your Freedom of Information Act (FOIA) request for "any and all documents in the Department of Defense Office of the Secretary and Joint Staff's possession that pertain to the WikiLeaks website or organization from January 2005 to the present date." Your request was received in this office on November 27, 2013, and assigned FOIA case number 14-F-0200.
According to the FOIA's legislative history, a description would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort, and reasonably describes records if the agency is able to determine "precisely" what records are being requested.
Courts have identified at least three (3) ways in which a FOIA request can fail to reasonably describe the records sought:
1) the description may be too vague to allow the agency to determine precisely what records are being requested; an agency is not required to have clairvoyant capabilities to discover the requestor's need;
2) broad sweeping requests lacking specificity are insufficient; and,
3) even where a request sufficiently describes the records sought, an agency is not required to comply with a request so broad that it would impose an unreasonable burden upon the agency. An agency need not honor a request that requires an unreasonably burdensome search. The "reasonably describes" requirement exists because the FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters. As such, it is the requester's responsibility to frame requests with sufficient particularity to ensure the searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested.
In recent court action, James Madison Project (JMP) vs. CIA, the court referred to the request as "too broad because the term "pertaining to" is synonymous to the term "relating to," which generally indicates an overbroad request. A request for "all documents 'relating to' a subject is usually subject to criticism as overbroad since life, like law, is a 'seamless web,' and all documents 'relate' to others in some remote fashion." Massachusetts v. U.S. Dep't of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989). Such a request "unfairly places the onus of non-production on the recipient of the request and not where it belongs - upon the person who drafted such a sloppy request."
As it stands, your request is not reasonably described. Accordingly, your request will be closed in this office.
If you are not satisfied with this action, you may submit an administrative appeal to James Hogan, Defense Freedom of Information Policy Office, 1155 Defense Pentagon, Washington, DC 20301-1155. Your appeal should be postmarked within 60 calendar days of the date of this letter, should cite to case number 14-F-0200, and should be clearly marked "Freedom of Information Act Appeal."
Yasmeen Hargis, FOIA Analyst
For Suzanne Council, Senior Advisor on behalf of Paul J. Jacobsmeyer, Chief, Office Freedom of Information Office of the Secretary of Defense and Joint Staff FOIA Request Service Center http://www.dod.mil/pubs/foi/
1155 Defense Pentagon
Washington, DC 20301-1155
P: (571) 372-0420
F: (571) 372-0480
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