DHS field office reports re: cell site simulator deployments (CBP)

Shawn Musgrave filed this request with the United States Customs and Border Protection of the United States of America.

It is a clone of this request.

Tracking #

CBP-2018-000505

Est. Completion None
Status
No Responsive Documents

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 field office annual reports reflecting the total number of times a cell-site simulator is deployed in the jurisdiction; the number of deployments at the request of other agencies, including state or local law enforcement; and the number of times the technology is deployed in emergency circumstances.

Per the amended policy on cell site simulators, "POLICY DIRECTIVE 047-02: Department Policy Regarding the Use of Cell-Site Simulator Technology" (available at https://www.dhs.gov/sites/default/files/publications/Department%20Policy%20Regarding%20the%20Use%20of%20Cell-Site%20Simulator%20Technology.pdf): "Each field office shall report to its Component headquarters annual records reflecting the
total number of times a cell-site simulator is deployed in the jurisdiction; the number of deployments at the request of other agencies, including state or local law enforcement; and the number of times the technology is deployed in emergency circumstances."

According to a December 2016 report by the U.S. House of Representatives, Committee on Oversight and Government Reform (attached):

Customs and Border Patrol (CBP) spent approximately $2,500,000 on cell-site simulator technology in FY2010 through FY2014, and owns 33 such devices. (See report page 14.)

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: 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=090004d281627b45)
* Tracking Number: CBP-2018-000505
* Requester Name: MuckRock News
* Date Submitted: 10/03/2017
* Request Status: Submitted
* Description: See attachment

From: CBPFOIA@cbp.dhs.gov

MuckRock News
DEPT MR 44007 411A Highland Ave Somerville MA 02144

Dear MuckRock News (Shawn Musgrave):


This  notice acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) received on 10/03/2017 in which you are seeking annual reports reflecting the deployment of cell site simulators.

Please  respond within 10 business days and provide a time frame in order for us to conduct a search for records responsive to your request, or your request will be closed as insufficient.


Please use the following unique FOIA tracking number CBP-2018-000505 to track the status of your request.  If you have not already done so, you must create a FOIAonline account at https://foiaonline.regulations.gov.  This is the only method available to check the status of your pending FOIA request. (https://foiaonline.regulations.gov/)

Provisions of the Act allow us to recover part of the cost of complying with your request.  We shall charge you for records in accordance with the DHS FOIA regulations outlined on the DHS website, https://www.federalregister.gov/documents/2016/11/22/2016-28095/freedom-of-information-act-regulations. By submitting your request, you have agreed to pay up to $25.00 in applicable processing fees, if any fees associated with your request exceed this amount, CBP shall contact you; however, the first 100 pages are free. (https://www.federalregister.gov/documents/2016/11/22/2016-28095/freedom-of-information-act-regulations)

Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request.  Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, CBP processes FOIA requests according to their order of receipt.  Although CBP’s goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances pursuant to 6 C.F.R. Part 5 § 5.5(c).

CBP’s FOIA Division is working hard to reduce the amount of time necessary to respond to FOIA requests.  Currently, the average time to process a FOIA request related to "travel/border incidents" is a minimum of 3-6 months. We truly appreciate your continued patience.

For additional information please consult CBP FOIA website please click on FOIA Act Resources or visit (http://www.cbp.gov/site-policy-notices/foia) http://www.cbp.gov/site-policy-notices/foia. (http://www.cbp.gov/site-policy-notices/foia)

From: Shawn Musgrave

Hello -

Please note that, per the attached response from DHS HQ FOIA, this request was transferred to CBP on August 14, 2017. Having received no response to date, I submitted this request. As such, I ask that the effective date of my request reflect that CBP was already in receipt via the transfer from DHS HQ.

Please search for annual reports from 2015 to date.

Best,
Shawn Musgrave

  • Final_-_Transferred_to_Component_-_1_Letter_to_Requester201.pdf

From: United States Customs and Border Protection

Pursuant to 6 C.F.R. Part 5 § 5.3(b) of the DHS FOIA regulations, you must describe the records you are seeking with as much information as possible to ensure that our search of appropriate systems of records can find them with a reasonable amount of effort. Your FOIA request has been closed as insufficient for one or more of the following reasons:
·       You did not include a clear and detailed description of the records being requested. As per our October 4, 2017 correspondence to you, we require a time frame in order to conduct an efficient search for records responsive to your request.  As of today's date, we have not received a time frame for this request, and as such, are closing the request as insufficient.  Please be advised that the FOIA does not require federal agencies to answer inquiries or create records in response to a FOIA request, but rather is limited to requiring agencies to provide access to reasonably described, nonexempt records.   As you have failed to reasonably describe the records you are seeking, your request is not a perfected request, and we are unable to initiate a search for responsive records.
Please resubmit your FOIA request, along with the required information, by logging into your existing FOIAonline account or go to https://foiaonline.regulations.gov to create an account.

From: Shawn Musgrave

To Whom It May Concern:

This is an appeal of Customs and Border Protection's rejection of my request based on its contention that I failed to provide a sufficiently instructive time frame for my request and/or that I failed to provide "as much information as possible to ensure that our search of appropriate systems of records can find them with a reasonable amount of effort."

In my initial request, submitted to CBP on 09/28/2017, I requested: "All field office annual reports reflecting the total number of times a cell-site simulator is deployed in the jurisdiction; the number of deployments at the request of other agencies, including state or local law enforcement; and the number of times the technology is deployed in emergency circumstances."

Not only did I provide the precise description of the documents as established in a policy directive, I also provided the precise name of the relevant policy directive — POLICY DIRECTIVE 047-02: Department Policy Regarding the Use of Cell-Site Simulator Technology. I also quoted the relevant section indicating where an agency should search for the the annual reports: "Each field office shall report to its Component headquarters." I have attached a copy of that policy directive to this appeal.

If the above is insufficient information, I am baffled as to what CBP would consider sufficient.

Furthermore, given that the relevant policy directive that established the reporting requirement on cell-site simulators was enacted in October 2015, by requesting "all" such reports, I was already limiting the request to the timeframe of October 2015 to the date the request was submitted. Any other interpretation of my request as unduly burdensome or broad contradicts the letter of the request itself. However, upon receipt of CBP's request on 10/04/2017 that I make this time frame explicit, I did so by email response the same day, writing: "Please search for annual reports from 2015 to date." My full email correspondence with CBP's FOIA office is also attached.

In addition to the relevant policy directive and my own both implicit and explicit indication of the relevant time frame, I also attached a Congressional report containing information about cell-site simulator deployments within the Department of Homeland Security. That report is also attached here.

In short, in my initial request I provided more than enough information such that a competent administrator within CBP could identify and locate the relevant annual reports as outlined by the relevant policy directive. I clarified the relevant time frame upon request by CBP. The determination by CBP that this request has insufficient detail is in derogation of the DHS own guidelines for FOIA requests, in that CBP has not made a good faith effort nor, seemingly, even read the subsequent correspondence or materials I provided.

Finally, I point out that another DHS component subject to the same reporting requirement — Immigrations and Customs Enforcement — has complied with an identical request without these protestations.

In light of the above, I respectfully ask that this request be remanded back to CBP for a good faith search and provision of responsive documents. This is a simple request, and one which should be processed without continued delay.

Best,
Shawn Musgrave

  • THE-FINAL-bipartisan-cell-site-simulator-report_3UjVHSh.pdf

  • Department20Policy20Regarding20the20Use20of20Cell-Site20Simulator20Technology201.pdf

From:

Peter T. Lynch
Senior Attorney
FOIA Appeals, Policy and Litigation Branch
OIT/RR
90 K Street, NE, 10th Floor
Washington, DC 20229
Tel: 202-325-0129
Fax: 202-325-0310

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