2013-HQFO-00011 ; 2014-HQAP-00008
|Submitted||Oct. 3, 2013|
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To Whom It May Concern:
This is a request under the Freedom of Information Act. I hereby request the following records:
All social media templates submitted to the DHS Privacy Office by DHS components, as referenced by DHS OIG in its September 2013 report, "DHS Uses Social Media To Enhance Information Sharing and Mission Operations, But Additional Oversight and Guidance Are Needed."
From page 22 of that report -- "The Acting Chief Privacy Officer
clarified in the comments that the DHS Privacy Office received 16 component
templates and approved 13 of those templates before our fieldwork ended in
November, 2012. According to the Acting Chief Privacy Officer, the remaining
three templates were approved in December 2012."
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.
Attached is our acknowledgment to 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.
Thank you for acknowledging 2014-HQFO-00011 . As I have brought up repeatedly to DHS components over the past week without any response or even acknowledgement of my rebuttal, I must admit that I'm confused by your determination, as well as by DHS Privacy Office's general inclination of late toward classifying me as a commercial requester rather than as a representative of the news media.
It seems that your qualifications for who qualifies under which category are not being consistently applied. See, for instance, the attached letter classifying my intern, Zack Sampson, as an "all other" requester, rather than as a commercial requester. Please note that this determination was made by your office just this past week.
Furthermore, I am undoubtedly a media requester. My work on national security and the government has been featured not only on MuckRock's original news site (muckrock.com/news), but in such outlets as the Boston Globe, VICE/Motherboard, The Phoenix, The Progressive, and a number of other outlets.
Just last Friday, in fact, I was published in the Boston Globe : www.bostonglobe.com/metro/2013/10/25/mass-libraries-strikingly-free-censorship/GV3LPCJO4kdzCb3a9HE6HJ/story.html
Now, I can certainly understand your confusion about the status of MuckRock overall, since in addition to conducting original investigations we also facilitate our users' requests, for which we do charge a processing fee to cover costs. This means that you must classify each MuckRock user individually into the appropriate fee category.
In my case, it could not be more transparent that I am a media requester. Kindly reclassify me.
I still have not heard any confirmation or answer to my response that I am not a commercial requester by any stretch. Our email client indicates that your office received my message, so this is doubly confusing.
Please be in touch as soon as you can so that we can clear up any confusion DHS Privacy Office may have as to my status as a media requester and journalist.
Based upon further review, we are standing by our original assessment that Muckrock is a commercial requester for 2013-HQFO-00011 and 2013-HQFO-00010.
You may appeal by sending your appeal to Associate General Counsel (General Law), Mailstop 0655, U.S. Department of Homeland Security, Washington, D.C. 20528, following the procedures outlined in the DHS regulations at 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<http://www.dhs.gov/foia> .
Associate General Counsel (General Law)
245 Murray Lane SW
Washington, D.C. 20528-0655
November 8, 2013
To Whom It May Concern:
This is an appeal of fee status for 2014-HQFO-00011. Specifically, I am appealing DHS Privacy Office's questionable determination that I am a "commercial requester," rather than a journalist entitled to media requester status under a plain reading of the FOIA statute.
The FOIA statute directs that fees shall be limited "to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by [...] a representative of the news media."
The 2007 FOIA amendments further define the news media category to include:
"any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. [....] the Government may also consider the past publication record of the requester in making such a determination."
Without a doubt, I meet the definition of a media requester. I am the editor of the MuckRock (MuckRock.com) website, which publishes original news content on a daily basis. All of MuckRock's content focuses either on FOIA itself or reports off of documents received via public records requests. Below are a number of the dozens of articles I have written for MuckRock:
In addition to my capacity as editor of MuckRock, I am also a freelance journalist whose work has been published in such online and print outlets as the Boston Globe, VICE/Motherboard, The Phoenix, The Progressive and Dig Boston. Here are clips of previous articles that I have written for some of these publications:
My coverage of topics from national security and drones to bike politics and bus inspections has been cited by a host of other news outlets at the international, national and local levels. I have received two grants from the Fund for Investigative Journalists, both for projects that revolve around public records investigations.
In short, it could not be clearer that I am, in fact, a journalist.
While I provided the above examples of my work, the DHS Privacy Office has consistently seen fit to ignore it. In so doing, the DHS Privacy Office has flouted the standards established under FOIA for determining fee status.
As I wrote to the DHS Privacy Office, I can understand a certain degree of confusion about the status of MuckRock overall. In addition to conducting original investigations, MuckRock also facilitates users' requests, for which users do pay a nominal processing fee to cover administrative costs. By the Privacy Office's argument, MuckRock's charging a fee for tracking FOIA requests means that each MuckRock user qualifies as a commercial requester. As one of our users so eloquently put it, if anyone who submits a FOIA request via MuckRock is a commercial requester, than so is every citizen who tracks their FOIA requests via Microsoft Excel or another spreadsheet application. This is untenable.
How a requester submits FOIA requests is immaterial to that individual's fee category. Rather, what matters is the purpose to which the requester intends to put the documents. As I confirmed in my original request letter and have repeatedly emphasized over the past weeks, I have no commercial interest in these documents. I have no intent to sell or otherwise profit from the information therein, but rather intend to post them in full online and write about them so that the public can better understand the workings of the Department of Homeland Security and its component agencies. MuckRock doesn't even have any paywall -- these documents will be available to anyone with a computer and curiosity about his or her tax-funded officials. For my part, I will derive only journalistic benefit from the requested documents.
The Privacy Office's insistence that I am a commercial requester is patently false and concerning. I urge you to direct the DHS Privacy Office to apply the clear standard of the FOIA statute and its fee provisions to all requesters. Individuals with no commercial interest in requested documents should not be subject to commercial requester fees under any circumstances, and journalists should be recognized as such.
I thank you for your prompt attention, and I look forward to your response.
Thank you for contacting the DHS Privacy Office. We greatly appreciate your interest. We will get back to you as soon as possible.
DHS Privacy Office
U.S. Department of Homeland Security
245 Murray Lane SW, Mail Stop 0655
Washington, DC 20528-0655
Telephone: (202) 343-1717
Fax: (202) 343-4010
Office Website: www.dhs.gov/privacy<http://www.dhs.gov/privacy>
Attached, please find our acknowledgment of your appeal related to DHS FOIA request #2014-HQFO-00011.
U.S. Department of Homeland Security
202-343-1743 (Main FOIA Number)
Visit our FOIA website
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.
Please find attached the FOIA Appeal decisions for 2014-HQAP-00005, 2014-HQAP-00006, 2014-HQAP-00007 and 2014-HQAP-00008 issued by Judge Bruce Tucker Smith's office.
Hearing Docket Clerk
U.S. Coast Guard
Please advise as to the status of this appeal. Per my records, no update has been sent in more than a year.
Attached please find the transmittal email from the ALJ sent on December 18, 2013 and a copy of the ALJ's decision on appeal (2014-HQAP-00008).
If you have any other questions, please contact me at your earliest convenience.
Kevin L. Tyrrell, J.D.
FOIA Litigation Specialist
U.S. Department of Homeland Security
Direct: (202) 343-1662
Fax: (202) 343-4011
Thank you for sending these. I have updated our records appropriately.