DHS Enterprise Correspondence Tracking System (ECT) schema and training materials

Shawn Musgrave filed this request with the Department of Homeland Security of the United States of America.
Tracking # 2016-HQFO-00137
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:

-The current database schema (sometimes called the index) for the Enterprise Correspondence Tracking System (ECT)
-All training materials for use and maintenance of the Enterprise Correspondence Tracking System (ECT)

As this request is submitted in my capacity as a journalist who has covered the Department of Homeland Security extensively, I assert that I am appropriately categorized as a "media requester" for the purpose of fees. Furthermore, as these documents are of public interest — and will be shared online for the public to view for free — I request that all fees for the processing of this request be waived.

In the event that there are fees, 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: Department of Homeland Security


None

From: Shawn Musgrave

Hello -

Thank you for acknowledging FOIA #2016-HQFO-00137. Per your acknowledgement letter, you have categorized me as a non-commercial requester. As I am a reporter for the New England Center for Investigative Reporting, this is not my appropriate categorization. Given that this request was submitted in my capacity as a journalist, I am appropriately categorized as a media requester.

I would be happy to submit a few of my dozens of articles that I have written, including an abundance of coverage on the federal government and the Department of Homeland Security, specifically. However, as I have been previously categorized as a media requester by the DHS FOIA Office numerous times, as well as in light of my employment by an organization with "Reporting" in its very name and apparent mission, I expect this is unnecessary.

Please correct my categorization immediately, and confirm that you have done so.

Respectfully,
Shawn Musgrave

From:

December 29, 2015
Department of Homeland Security
U.S. Department of Homeland Security
Privacy Office
Director, Disclosure & FOIA
245 Murray Drive SW, Building 410
STOP-655
Washington, D.C. 20528-0655

This is a follow up to a previous request:

Hello -

Thank you for acknowledging FOIA #2016-HQFO-00137. Per your acknowledgement letter, you have categorized me as a non-commercial requester. As I am a reporter for the New England Center for Investigative Reporting, this is not my appropriate categorization. Given that this request was submitted in my capacity as a journalist, I am appropriately categorized as a media requester.

I would be happy to submit a few of my dozens of articles that I have written, including an abundance of coverage on the federal government and the Department of Homeland Security, specifically. However, as I have been previously categorized as a media requester by the DHS FOIA Office numerous times, as well as in light of my employment by an organization with "Reporting" in its very name and apparent mission, I expect this is unnecessary.

Please correct my categorization immediately, and confirm that you have done so.

Respectfully,
Shawn Musgrave
---
On Dec. 28, 2015:

None
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On Dec. 18, 2015:
To Whom It May Concern:

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

-The current database schema (sometimes called the index) for the Enterprise Correspondence Tracking System (ECT)
-All training materials for use and maintenance of the Enterprise Correspondence Tracking System (ECT)

As this request is submitted in my capacity as a journalist who has covered the Department of Homeland Security extensively, I assert that I am appropriately categorized as a "media requester" for the purpose of fees. Furthermore, as these documents are of public interest — and will be shared online for the public to view for free — I request that all fees for the processing of this request be waived.

In the event that there are fees, 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

Filed via MuckRock.com
E-mail (Preferred): requests@muckrock.com

For mailed responses, please address (see note):
MuckRock
DEPT MR 23015
PO Box 55819
Boston, MA 02205-5819

PLEASE NOTE: This request was filed by a MuckRock staff reporter. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable.

From: Busch, Maura

Good morning Shawn,

Please see:

Cause of Action v. FTC, No. 1:12-cv-00850-EGS, 2013 WL 4406875 (D.D.C. Aug. 19, 2013) (Sullivan, J.)

· Fee category: The court finds that plaintiff does not qualify for representative of the news media fee status. Plaintiff "satisfies the first element because it gathers information of potential interest to a segment of the public." However, plaintiff does not meet the second element because it has not demonstrated that "it uses its editorial skills to turn raw material into a distinct work." Instead, "[t]he only information it identified as 'published' is unspecified information it posts on its website, social media sites such as Facebook and Twitter, and through an email newsletter it began publishing to subscribers beginning in September 2011, after it made its first FOIA request and just one month before it filed its second request." Plaintiff also "did not indicate any distinct work it planned to create based on the requested information or that it would use any information beyond that obtained in the FOIA requests to create any unique product."

Likewise, plaintiff fails to satisfy the third element required for representative of the news media status. "Plaintiff has not specifically demonstrated its intent and ability to disseminate the requested information to the public rather than merely make it available." The court notes that plaintiff's "newsletter did not even exist until after it made its first FOIA request, and had only been published for a month when it filed its second request." In addition, "[p]laintiff has not estimated how many people view its website or social media, nor has it indicated whether its media contacts would write about the requested information." The court further opines that even if plaintiff's media contacts published articles involving the information requested, plaintiff "'cannot simply borrow [its media contacts'] credentials for purposes of proving its own entitlement to a 'representative of the news media' fee limitation.'" In addition, plaintiff is not "organized especially around dissemination." "Plaintiff performs its activities to aid in government accountability and is thus more like a middleman for dissemination to the media."

Our office does not grant media status merely based upon the requester. The requester must affirmatively assert all three elements to be granted media status. Merely collecting and posting information online does not qualify a requester for media status.

Please be advised that this determination is made on a case by case basis.

Please let us know if you have any questions.

Maura Busch

From: Shawn Musgrave

Ms. Busch -

Thank you for your followup. Please note that I am undoubtedly a reporter who uses "editorial skills to turn raw material into a distinct work". This has been recognized numerous times by your own office in granting me media status in the past.

Nonetheless, please see the below examples of my journalistic work, much of which concerns the Department of Homeland Security and the federal government:

https://www.muckrock.com/news/archives/2014/nov/19/while-three-quarters-states-have-released-their-po/

https://www.muckrock.com/news/archives/2014/oct/08/fcc-fbi-cant-agree-stingray-nda/

https://www.themarshallproject.org/2014/12/03/the-pentagon-finally-details-its-weapons-for-cops-giveaway

www.bostonmagazine.com/news/blog/2014/12/17/now-know-massachusetts-police-departments-packing-serious-heat/

http://www.bostonglobe.com/metro/2013/12/14/boston-police-suspend-use-high-tech-licence-plate-readers-amid-privacy-concerns/B2hy9UIzC7KzebnGyQ0JNM/story.html

http://motherboard.vice.com/read/the-us-spent-360-million-on-border-drones-thanks-to-this-flimsy-report

http://motherboard.vice.com/read/the-air-force-says-it-needs-precisely-52-new-reaper-drones-cant-explain-why

http://motherboard.vice.com/read/do-the-fbis-drones-invade-your-privacy-sorry-thats-private

https://www.bostonglobe.com/metro/2013/04/08/big-brother-better-police-work-new-technology-automatically-runs-license-plates-everyone/1qoAoFfgp31UnXZT2CsFSK/story.html

www.betaboston.com/news/2014/03/05/a-vast-hidden-surveillance-network-runs-across-america-powered-by-the-repo-industry/

https://www.thedailybeast.com/articles/2015/02/05/nypd-social-media-policy-allows-catfishing-with-the-proper-paperwork.html

http://motherboard.vice.com/read/do-the-fbis-drones-invade-your-privacy-sorry-thats-private

https://news.vice.com/article/fbi-agent-who-killed-boston-bombing-suspects-friend-was-twice-accused-of-police-brutality

I thus affirmatively assert my status as a representative of the news media with sufficient specificity so as to justify my categorization accordingly.

Respectfully, you cite an outdated case in your demand that I meet three particular bullet points to justify my categorization as news media. Whereas in Cause of Action the requester was an advocacy organization, my employer is the New England Center for Investigative Reporting. The name alone, as well NECIR's consistent reporting as its product, firmly establishes my requests within the "media requester" category. This is firmly enshrined in last summer's case against ICE, Long v. DHS, No. 14-807, 2015 WL 3961312 (D.D.C. June 29, 2015).

As summarized by the Justice Department, Office of Information Policy (see: http://www.justice.gov/oip/long-v-dhs-no-14-807-2015-wl-3961312-ddc-june-29-2015-cooper-j):

"Second, the court finds that "[p]laintiffs' uncontested representations that they intend and have the ability to disseminate new research to the public were sufficient to meet the definition of representatives of the news media." The court specifically addresses defendant's counter arguments and, in response, finds that "[i]ncorporating information from a range of sources . . . is not essential for news media status[,]"[...]"

For your convenience, I have attached a copy of the opinion in that case to this email.

The court determined in the above case that an organization that describes itself as a research institute and which consistently produces research reports is categorically entitled to news media status.

This is precisely the position we find ourselves for my request: whereas I, as a reporter whose work has been cited by the Fund for Investigative Journalism and a number of other professional journalism associations, attest that this request is submitted in my capacity as a reporter who is employed by an esteemed media outlet, your agency must categorize me appropriately as a media requester for the purpose of fees.

In light of the above, I respectfully ask once again that you amend my classification to reflect my status as a media requester. Should you fail to do so, I will submit an appeal based on the current case law, which clearly establishes my right to news media status.

I look forward to your substantive response, so that we might dispatch with this issue.

Respectfully,
Shawn Musgrave

From: Busch, Maura

We can change your status for this one. Next time you need to affirm state that you plan on using the information to create a distinct work-it is case by case and not automatically granted.

From: Shawn Musgrave

Ms. Busch -

Thank you for updating my status. Respectfully, I urge you again to review the case that I have cited:

"TRAC’s past activities amply demonstrated its ability to transform the requested data into a distinct work and distribute it to the public. The agency therefore had no basis for requesting further detail on this topic."

You could easily substitute my own name or "New England Center for Investigative Reporting" in place of "TRAC" in the above excerpt from the opinion. Following last summer's ruling, the Cause of Action case does not control media status determinations for requests where the requester is clearly a member of the media. I attested as much in my original letter, and will continue to do so in the future. Please update your own guidelines accordingly.

Respectfully,
Shawn Musgrave

From: Shawn Musgrave

Ms. Busch -

Apologies for the numerous emails, but I have been informed that the case you cite, Cause of Action (2013), has been effectively overturned by the United States Court of Appeals for the DC Circuit, as of August 25, 2015.

For your convenience, I have also attached a copy of that opinion to this email.

In its opinion overturning the 2013 case, the Court of Appeals ruled that media status turns on the nature of the requester, and as such is not a status to be awarded on a case-by-case basis such as you have proposed. See the 2015 opinion, p22:

"That analysis appears to require that each FOIA request be for information that is of potential interest to a segment of the public. Such a case-by-case approach is correct for the public interest waiver test, which requires that the “disclosure of the [requested] information” be in the public interest. 5 U.S.C. § 552(a)(4)(A)(iii). But the news-media waiver, by contrast, focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information."

See the 2015 opinion, p26:

"First, by focusing on Action’s intent and ability to disseminate “the requested information” rather than information in general, this formulation again looks to the nature of the request rather than of the requester. As we noted above, however, the news-media provision focuses on the latter."

Finally, see the 2015 opinion, p29:

"The news-media provision requires a fact-based determination of whether a particular requester’s description of its past record, current operations, and future plans jointly suffice to qualify it as a representative of the news media. For a requester that serves (or plans to serve) the public through
multiple outlets -- here, newsletters, press releases, press contacts, a website, and planned reports -- those must be considered in combination. An entity with an extensive record will ordinarily qualify with only a thin recital of its plans (or perhaps none at all). Conversely, an entity with little or no
historical record of distributing its work (like the National Security Archive) may make up for that absence by concretely setting out its plans to do so."

Per the court, an individual such as myself who is a reporter employed by "an entity with an extensive record" of publishing unique editorial works will qualify for the media requester status, even without any recital of plans to publish unique editorial works that rely on information gleaned from the particular documents requested.

Under controlling caselaw, then, such is the nature of the media requester category: I, a reporter, undoubtedly qualify for media requester status upon my own assertion, and not under a case-by-case analysis. Please update your guidelines accordingly.

Respectfully,
Shawn Musgrave

From: Busch, Maura

Thanks…this was a remand for fee waivers.

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