DHS "Introduction to Risk Analysis" Training Course

To Whom It May Concern:

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

All Department of Homeland Security Office of Intelligence and Analysis' "Introduction to Risk Analysis" training course material.

This request should include all manuals, brochures, slide presentations, and all related audio/video presentations.

The time frame for this request is from 1 January 2013 up to and including the date that this request is officially processed.

This request is not meant to be exclusive of any other records which, though not specifically requested, would have a reasonable relationship to the subject matter of this request.

All processing notes related to this request should be provided after its completion.

If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect to be provided with all segregable portions of otherwise exempt material. Please separately state your reasons for not invoking your discretionary powers to release the requested documents in the public interest.

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.

Sincerely,

Dustin Slaughter

Dear Miss Waters,

Thanks for your prompt response. Please reference this training event that took place in June 2013 in Philadelphia, PA:

http://webcache.googleusercontent.com/search?q=cache:RsRD0-gcII4J:www.acp-international.com/~lvadmin/images/Delaware%2520Valley_Intro%2520to%2520Risk%2520Analysis_11-13%2520June.pdf+&cd=2&hl=en&ct=clnk&gl=us

I hope this clarifies.

Sincerely,
Dustin Slaughter

Dear Miss Waters,

In the interest of expediting case #2014-IAFO-0126, I have decided not to contest your office's fee waiver denial. This does not mean, however, that your office's claim that MuckRock News isn't a legitimate news organization is in any way accurate.

First, your office made the curious decision to cite a previous version of MuckRock News' 'About' page. The correct version your office must use is here: https://www.muckrock.com/about/

This updated description clearly states:

"MuckRock is a collaborative news site that brings together journalists, researchers, activists, and regular citizens to request, analyze & share government documents, making politics more transparent and democracies more informed.

The site provides a repository of hundreds of thousands of pages of original government materials, information on how to file requests, and tools to make the requesting process easier. In addition, MuckRock staff and outside contributors do original reporting and analysis of many of the documents received through the site.

MuckRock's unique form of investigative and accountability journalism has been recognized by the Sunlight Foundation, The Freedom of the Press Foundation, and hundreds of local and national news outlets for its groundbreaking work in areas such as government spending, surveillance, and public safety.

In addition, MuckRock works with journalists to help conceive, pursue, and publish original stories on issues that matter with exclusive primary materials obtained via public records law."

If MuckRock News' 'About' section doesn't clear up your office's apparent confusion about what the organization does, here are additional examples of original content they've produced, or helped produce:

"Homeland Security Investigations broadens scope of border investigations": https://www.muckrock.com/news/archives/2014/apr/22/operation-cornerstone-training-slides/

"DEA claims no guidelines on enforcing federal ban in marijuana-friendly states": https://www.muckrock.com/news/archives/2014/mar/31/dea-claims-no-documents-how-enforce-csa-legalized/

"EFF and MuckRock Have Filed Over 200 Records Requests On Drones And The Results Are Pouring In: https://www.eff.org/deeplinks/2012/10/eff-and-muckrock-have-filed-over-200-public-records-requests-surveillance-drones

With this particular request, curiosity, scrutiny, and criticism in media and among the public continues to grow with regards to how fusion centers operate. More specifically, public debate continues to intensify regarding how fusion centers are protecting privacy and civil liberties as they collect and analyze huge swaths of information from public and private sector partners. Here is but a small sampling of stories about fusion centers - and just how little taxpaying public still know about them - that have recently appeared in the press:

"Fusion Centers' Collection of Local and State Data Worries Civil Libertarians, Others": http://somd.com/news/headlines/2014/18055.shtml

"Fusion Center Data Raises More Privacy Questions": http://www.bradenton.com/2014/04/14/5102279/fusion-center-data-raises-more.html

"Why Fusion Centers Matter": https://www.eff.org/deeplinks/2014/04/why-fusion-centers-matter-faq

"What It Really Means to Be Safe in a Democracy": http://cognoscenti.wbur.org/2014/04/12/marathon-bombing-carol-rose

Lastly, it is very puzzling why your office believes it necessary to charge for this request, while not charging for an earlier request filed with DHS on 14 March (which was expeditiously filled with no charge):

https://www.muckrock.com/foi/united-states-of-america-10/national-operations-center-monitoring-of-elk-river-chemical-spill-10792/

In conclusion, the Department of Homeland Security's highly arbitrary and inconsistent application of fee waivers is extremely disconcerting (and baffling), and if continued, will undoubtedly face increasing backlash from the public and press.

Thank you for your time and consideration. I look forward to receiving all documents responsive to this request within the time frame mandated by statute.

Sincerely,
Dustin Slaughter

Dear Miss Waters,

I am following up with your office regarding case #2014-IAFO-0126. Please let me know when I can expect a final determination, as 5 U.S.C. § 552 requires, or if you require additional information.

Sincerely,
Dustin Slaughter

Dear Miss Waters,

Please let me know when I can expect a final determination or notice of delay regarding case #2014-IAFO-0126 no later than 5pm tomorrow, or I will be forced to refer this request to the Office of Government Information Services for mediation; failing a successful resolution, I will move to litigate this matter.

Sincerely,
Dustin Slaughter

Dear Miss Waters,

Despite my waiving an appeal for expedited processing, and because of your lack of communication in this already past-due matter (despite repeated inquiries), please be advised that I am referring case #2014-IAFO-0126 to OGIS for mediation. Failing an equitable mediation, I will be forced to move to litigation.

Sincerely,
Dustin Slaughter

Dear OGIS Staff:

I'm contacting your office regarding a FOIA #2014-IAFO-0126, which was sent to the Department of Homeland Security on 14 April 2014.

Please reference this: https://www.muckrock.com/foi/united-states-of-america-10/dhs-introduction-to-risk-analysis-training-course-11279/

As always, I greatly appreciate any mediation assistance your staff can provide, given your limited resources. Please let me know if you require additional info, or if you would like me to take additional steps.

Sincerely,
Dustin Slaughter

Via Mail:

Associate General Counsel (General Law)
U.S. Department of Homeland Security
Washington, D.C. 20528
FOIA APPEAL

To Whom It May Concern:

This a formal appeal to the Office of Intelligence and Analysis' 1 July 2014 response (enclosed) stating there are no records responsive to 2014-IAFO-0126, and to the agency's apparent decision to not release the requested processing notes.

I am contesting the adequacy of I&A's search. Oglesby v. U.S. Dep’t. of Army, 920 F.2d 57, 67 (D.C. Cir. 1990). An agency “must show that it made a good faith effort to conduct a search...using methods which can be reasonably expected to produce the information requested.” Id. at 68. The grounds to appeal this inadequate search are as follows:

First, it is clear, based on Office of Intelligence and Analysis (I&A)'s letter, that other components outside of Office of Intelligence and Analysis were not queried. Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F.Supp.2d 1, 13-14 (D.D.C. 2004); Nat’l Res. Def. Council v. U.S. Dep’t of Def., 388 F. Supp. 2d. 1086, 1100-1101 (C.D. Cal. 2005).

On 15 April, I&A sought clarification to refine its search. In response, I offered the following March 2013 brochure, "Introduction to Risk Analysis", which indicates a three day training course was scheduled to occur in Philadelphia, and was to be conducted with two other DHS components in addition to I&A:

http://www.acp-international.com/~lvadmin/images/Delaware%20Valley_Intro%20to%20Risk%20Analysis_11-13%20June.pdf

The "Introduction to Risk Analysis" brochure mentions other DHS components which partnered with I&A to execute the 2013 training, namely: "...the Homeland Infrastructure Threat and Risk Analysis Center, and the Federal Emergency Management Agency."

I&A's response did not indicate that these two components were queried for responsive documents.

I&A assertion that a three day training course would not include the items listed in my request - "training course material...manuals, brochures, slide presentations, and all related audio/video presentations" - simply strains credulity. Furthermore, an agency “has a duty to construe a FOIA request liberally”, Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).

Thank you for your time and consideration. I look forward to your agency's timely response as required by the FOIA.

Sincerely,
Dustin Slaughter

To Whom It May Concern:

I would greatly appreciate an update as to the status of FOIA appeal #2014-HQAP-00076.

Thank you for your time and attention in this matter.

Sincerely,
Dustin Slaughter

Hello Ms. Page,

Per the attached communications, this request has been forwarded to your office. Confirmation of receipt and an estimated date of completion would be much appreciated.

Thank you very much for your help!

To Whom It May Concern:

Per the attached communications, this FOIA request has been forwarded to your office for processing. Please confirm receipt and provide an estimated date of completion.

Thank you very much for your help.

Good morning, Miss Worthy or Whom This May Concern,

I'm following up regarding the status of case #2015-NPFO-00040. The last communication received from your office was on 7 November of last year. Please provide an estimated date of completion as required by statute.

I will also be following up with your office via phone today.

Thanks in advance for your time and consideration in this matter.

Thank you for your prompt response, Miss Worthy. Per statute, however, agencies are required to give an estimated date of completion. Any date you can provide would be greatly appreciated.

If you're unable to provide a date, I will refer this case to the Office of Government Information Services.

Thanks again for your time and attention in this matter.

Associate General Counsel (General Law)

U.S. Department of Homeland Security

Washington, D.C. 20528

RE: FOIA APPEAL – 2015-NPFO-00040

To Whom It May Concern:

Please consider this a formal appeal to the National Protection and Programs Directorate's 13 March 2015 decision to

withhold certain records regarding case 2015-NPFO-00040.

On April 14th, 2014, I requested all Department of Homeland Security “Introduction to Risk Analysis” training course

materials related to a June 2013 training event which took place in Philadelphia, PA at the Delaware Valley Intelligence

Center (request attached). On 15 March, 2015, the NPPD released 294 pages, with 13 partial redactions and 65 withheld in

their entirety, out of 355 responsive pages. NPPD cited exemptions 7(E) and 7(F) as grounds for not releasing all responsive

records (response attached).

I am appealing National Protection and Programs Directorate's determination on all grounds.

In response to NPPD's 7(E) assertion: the District of Columbia, Third, and Ninth Circuit Courts have adopted a two-part

“rational nexus” test to determine what constitutes a record “compiled for law enforcement purposes.” Pratt v. Webster,

673 F.2d 408, 419-21 (D.C. Cir. 1982); Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178,

184-86 (3d Cir. 2007); Church of Scientology v. U.S. Dep’t of Def., 611 F.2d 738, 748 (9th Cir. 1979).

To properly assert this claim, NPPD must identify “a particular individual or a particular incident as the

object of its investigation and the connection between...a possible security risk or violation of federal

law.” Pratt, 673 F.2d at 420. Furthermore, NPPD must establish that it “acted within its principal

function of law enforcement, rather than merely engaging in a general monitoring of private

individuals' activities.” Pratt, 673 F.2d at 420.

NPPD's assertion has clearly failed the first part of this test.

Failing the first part of this test, NPPD cannot meet the second's threshold either, because it must

establish a connection between an investigation and a law enforcement duty through “information

sufficient to support at least 'a colorable claim' of its rationality.” Pratt, 673 F.2d at 421.

Additionally, NPPD failed to “logically” explain how release of these records could reasonably “create

a risk of circumvention of the law.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)

(quoting PHE, Inc. v. DOJ, 983 F.2d 248, 251 (D.C. Cir. 1993)).

Because NPPD did not specify an investigatory target nor identify a connection between an

investigatory subject and any specific illegal conduct or security risk and the agency's responsibility to

investigate such activity, and did not explain how disclosure would “create a risk of circumvention of

the law,” the agency's 7(E) claim is without merit.

Challenging the agency's 7(F) exemption claim, the agency has failed to identify “the subject of the danger...with at least

reasonable specificity.” Simply claiming a threat to an unspecified individual or facility is not enough to justify a 7(F)

exemption. NPPD's 7(F) claim is therefore “far too speculative”. Am. Civil Liberties Union, 543 F.3d at 68, 71.

I am also requesting your office exercise its right to discretionary disclosure. On January 21st, 2009,

President Barack Obama issued a memorandum directing the heads of all agencies to “adopt a

presumption in favor of disclosure...” Crucially, the memo goes on to state: “The Government should

not keep information confidential merely because public officials might be embarrassed by disclosure,

because errors and failures might be revealed, or because of speculative or abstract fears.”

Furthermore, recent Office of Information Policy guidance instructs agencies withholding records

under Exemption 7 to not do so, particularly when based on speculation or abstract fears, adding:

“...agencies should consider whether records which reference a law enforcement technique or

procedure are now outdated, or no longer sensitive, or not specific enough to cause harm.”

Due to NPPD's speculative assertions, and because the requested records are related to training from

2013 (and therefore outdated), are introductory in nature as the manual's title suggests, and not directly

tied to any particular investigation, individual, or facility, these records should be released in full and

without further delay.

Should the withheld documents remain as such, I am prepared to litigate this matter.

Thank you in advance for your time and attention to this matter. I look forward to your office's decision

within the required statutory time frame.

Sincerely,

Dustin M. Slaughter