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

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

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

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