DHS OIG - TSA communications re: JFK audit classification

Shawn Musgrave filed this request with the Department of Homeland Security Office of Inspector General of the United States of America.
Tracking # 2015-087 ; Appeal 2015-A08
Due Aug. 1, 2016
Est. Completion None
Status
Awaiting Response

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 communications and correspondence (including emails with all attachments) sent to or from the DHS OIG office regarding the classification of information within OIG-15-18, "Audit of Security Controls for DHS Information Systems at John F. Kennedy International Airport," as Sensitive Security Information (SSI).

Please include all communications/correspondence from July 1, 2014 through the date this request is processed.

This includes, at minimum, the communications outlined in the following passage from the redacted version of the above report as published at the DHS OIG website (see http://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-18_Jan14.pdf), in which Inspector General John Roth describes the procedural history of the report:

"The procedural history of this report elicits an unfortunate commentary on the manner in which the Department handled this matter and bears review:

-We provided a draft of this report on July 22, 2014 to the Chief Information Officer for review. Pursuant to Department of
Homeland Security Directive 077-01, Follow-up, and Resolution for Office of Inspector General Report Recommendations, we asked for agency comments, including a sensitivity review, within 30 days of receipt of the draft. This would have made the report due on or about August 22, 2014. Almost a week later, on August 27, 2014, the DHS Chief of Staff requested an extension to provide a
response and technical comments. I granted the extension until September 17, 2014.

-On October 20, 2014, nearly 60 days after the original due date for agency comments, the Departmental GAO-OIG Liaison Office finally conveyed to us TSA's response to our request for a sensitivity review by marking several passages in the report as SSI. I disagree with this determination.

- On November 19, 2014, I sent a formal challenge memo to TSA Administrator John Pistole expressing my disagreement. Administrator Pistole had authority over all TSA programs and operations, including oversight of the SSI programs, and is my
counterpart in DHS' leadership.

- Having received no reply, on December 16, 2014, I wrote to Administrator Pistole a second time, noting that this report had
languished as a result of TSA's sensitivity review, and again requesting that he remove the SSI deletions from the report. As
with the November 19, 2014 letter, I received no reply.

-Finally, on January 13, 2015, over five months after submitting the report for sensitivity review, and two months after writing to Administrator Pistole, I received a decision, not from the Acting TSA Administrator, but from the head of the SSI program office - the very same office that initially and improperly marked the information as SSI. Not surprisingly, the office affirmed its original
redaction to the report."

To be clear, this request is not limited to the above, but also includes any communications/correspondence sent following the publication of the DHS OIG redacted report.

I also request that 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.

I furthermore request a fee waiver on the basis of my status as a journalist who has covered inspectors general extensively. Here is a selection of my published articles reviewing IG reports:

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

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

http://motherboard.vice.com/blog/the-feds-have-no-idea-whos-flying-drones

https://www.muckrock.com/news/archives/2013/jul/01/cia-nypd-relationship-report-and-daisy-chain-foias/

https://www.muckrock.com/news/archives/2014/feb/18/dhs-vancouver-olympics-social-media/

In addition to the above, I have also been published in a handful of other national media outlets:

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

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

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

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,

Shawn Musgrave

From: FOIA OIG

Mr. Musgrave,

Thank you for your interest in the Department of Homeland Security (DHS) Office of Inspector General (OIG). Attached please find DHS-OIG's acknowledgement and fee letter for your above-referenced FOIA request.

Sincerely,
Kirsten Teal

FOIA/PA Disclosure Specialist
U.S. Department of Homeland Security
Office of Inspector General
Office of Counsel
Phone: 202-632-0346

From: Shawn Musgrave

FOIA/PA Appeals Unit
DHS/Inspector General
STOP 2600
245 Murray Drive, SW, Building 410
Washington, DC 20528

February 17, 2015

To Whom It May Concern:

I am writing to appeal my categorization as a commercial requester for 2015-087. As I have appealed repeatedly over the past several months, DHS and its component agencies persist in categorizing me as commercial when my correct category for the purposes of fees for this FOIA request is as a representative of the news media.

DHS OIG has failed to substantiate its basis for determining that I intend to use the requested information for commercial purposes. The requested documents will be posted online for free via MuckRock. I confirm that I hold no commercial interest in the requested documents, and DHS OIG has provided no basis for determining otherwise. Furthermore, I substantiated in my FOIA letter — as I have done in numerous previous requests — that my intentions for the requested documents are journalistic in nature.

While DHS OIG has concluded broadly that MuckRock News does not qualify as a news media organization — a baffling position given the numerous grants, awards and other accolades that MuckRock has received for its original journalistic endeavors — its acknowledgement letter fails entirely to consider my request to be classified as a journalist who has written for a range of local and national media outlets. I included links to a handful of these published works in my request letter, but DHS OIG seemingly ignored this portion of the letter.

Again, I am an investigative journalist, and have no commercial interest in this request. Here is another selection of my publications:

VICE / Motherboard:

http://motherboard.vice.com/blog/the-department-of-defense-cant-find-any-of-its-drone-crash-data

http://motherboard.vice.com/blog/the-fbi-doesnt-know-how-many-drones-it-has-or-whos-allowed-to-fly-them

http://motherboard.vice.com/blog/the-faas-selection-of-six-drone-test-sites-comes-a-year-late

Boston Globe:

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

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

www.bostonglobe.com/metro/2013/12/12/the-fbi-file-john-silber-patriot-and-scholar-who-doesn-suffer-fools/pqlchgxx8MuU8pbkCLZW8M/story.html

Based on my publication history for outside outlets as well as for the MuckRock site, a plain-text reading of the FOIA statute and attending regulations suggests that my appropriate fee category is media, rather than commercial.

Again, I have no commercial interest in this request whatsoever, but seek the documents as part of an ongoing investigation. In the past, DHS OIG has categorized me as a non-commercial requester. I am aware that the DHS Privacy Office has issued guidance on the fee categorization of users and staff of the MuckRock site. In Mr. Holzer's September 26, 2013 memo on the subject, DHS FOIA components are directed that "requesters using MuckRock's services may qualify for [media requester] status" and that a "case-by-case review" is the standard as for all FOIA requesters. In this case, I am indubitably a journalist, particularly in light of the 2007 FOIA amendments, and certainly not a commercial requester.

Please revise my categorization immediately.

Thank you,

Shawn Musgrave
MuckRock

From: FOIA OIG

Mr. Musgrave:

Attached please find DHS-OIG's acknowledgement letter to the above-referenced FOIA Appeal.

Sincerely,

FOIA/DHS-OIG

From: Holliday-McDonald, Melinda

Mr. Musgrave,

DHS OIG is in receipt of your appeal regarding classifying you as a Media requestor. Prior to issuing a final decision I will need you to provide specific information regarding from whom and what purposes do you envision receiving compensation for any material produced from the information you are seeing from the OIG. In your past responses you have simply stated that you are paid to report. However, you have not provided any specifics regarding from who you specifically receive compensation from or anticipate receiving compensation from. In order to respond to your current appeal, I will need this specific information from you. Please respond to this request no later than Wednesday, March 25, 2015. If I do not receive a response from you by then I will proceed to address your appeal with the information you have already provided. Thank you.

Melinda Holliday McDonald
Melinda D. Holliday McDonald, Esq., CIPP/G
Assistant Counsel to the Inspector General
DHS/OIG/Office of Counsel
451 Murray Dr, SW.
Stop 0305
Washington, DC 20528
O: (202) 254-4284 M: (202) 321-2972 F: (202) 254-4398
melinda.holliday@oig.dhs.gov<mailto:melinda.holliday@oig.dhs.gov>

"...people will forget what you said, people will forget what you did, but people will never forget how you made them feel." - Maya Angelou

*** Warning *** Attorney/Client Privilege *** Attorney Work Product ***

This communication and any attachments may contain confidential and/or sensitive attorney/client privileged information or attorney work product and/or law enforcement sensitive information. It is not for release, review, retransmission, dissemination, or use by anyone other than the intended recipient. Please notify the sender if this email has been misdirected and immediately destroy all originals and copies. Furthermore do not print, copy, re-transmit, disseminate, or otherwise use this information. Any disclosure of this communication or its attachments must be approved by the Office of Counsel, Office of Inspector General. This document is for INTERNAL GOVERNMENT USE ONLY and may be exempt from disclosure under the Freedom of Information Act, 5 USC §§ 552(b)(5), (b)(7).

From: FOIA OIG

Mr. Musgrave:

Attached please find DHS-OIG's final response to the above-referenced FOIA Appeal.

Sincerely,

FOIA/DHS-OIG

From: FOIA OIG

Mr. Musgrave,

Thank you for your interest in the Department of Homeland Security (DHS) Office of Inspector General (OIG). Attached please find correspondence from the DHS-OIG.

Sincerely,
Kirsten Teal

From: Shawn Musgrave

Hello -

Yes, I am still interested in this request.

Furthermore, I request reconsideration as to my classification as a "commercial" requester. As a current reporter for the the New England Center for Investigative Reporting — see my employee bio here: http://eye.necir.org/about/our-team/shawn-musgrave/ — I am beyond confident that I fit all requirements to assert my legal right to categorization as a media requester for the purpose of fees.

Please confirm my recategorization, and proceed with processing this request.

Respectfully,
Shawn Musgrave

Files

pages

Close