DHS Privacy Office identification of operational social media

To Whom It May Concern:

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

The DHS Privacy Office's inventory of operational uses of social media across components. This inventory is referenced in the DHS OIG September 2013 report, "DHS Uses Social Media To Enhance Information Sharing and Mission Operations, But Additional Oversight and Guidance Are Needed"

See page 16 -- "In August 2012 the DHS Privacy Office began an effort to identify and
document components’ operational uses of social media, as required by
Instruction 110-01-001. As of November 2012, approximately 20 operational
uses of social media had been identified across the seven operational
components."

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,

Shawn Musgrave

Hello,

Thank you for acknowledging 2014-HQFO-00010. As I have brought up repeatedly to DHS components over the past week without any response, I must admit that I'm confused by your determination, as well as by DHS Privacy Office's general inclination of late toward classifying me as a commercial requester rather than as a representative of the news media.

It seems that your qualifications for who qualifies under which category are not being consistently applied. See, for instance, the attached letter classifying my intern, Zack Sampson, as an "all other" requester, rather than as a commercial requester. Please note that this determination was made by your office just this past week.

Furthermore, I am undoubtedly a media requester. My work on national security and the government has been featured not only on MuckRock's original news site (muckrock.com/news), but in such outlets as the Boston Globe, VICE/Motherboard, The Phoenix, The Progressive, and a number of other outlets.

Just last Friday, in fact, I was published in the Boston Globe : www.bostonglobe.com/metro/2013/10/25/mass-libraries-strikingly-free-censorship/GV3LPCJO4kdzCb3a9HE6HJ/story.html

Now, I can certainly understand your confusion about the status of MuckRock overall, since in addition to conducting original investigations we also facilitate our users' requests, for which we do charge a processing fee to cover costs. This means that you must classify each MuckRock user individually into the appropriate fee category.

In my case, it could not be more transparent that I am a media requester. Kindly reclassify me.

Respectfully,

Shawn Musgrave
MuckRock

Mr. Wolfrey,

I still have not heard any confirmation or answer to my response that I am not a commercial requester by any stretch. Our email client indicates that your office received my message, so this is doubly confusing.

Please be in touch as soon as you can so that we can clear up any confusion DHS Privacy Office may have as to my status as a media requester and journalist.

Best regards,
Shawn

Associate General Counsel (General Law)
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655

November 8, 2013

To Whom It May Concern:

This is an appeal of fee status for 2014-HQFO-00010. Specifically, I am appealing DHS Privacy Office's questionable determination that I am a "commercial requester," rather than a journalist entitled to media requester status under a plain reading of the FOIA statute.

The FOIA statute directs that fees shall be limited "to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by [...] a representative of the news media."

The 2007 FOIA amendments further define the news media category to include:

"any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. [....] the Government may also consider the past publication record of the requester in making such a determination."

Without a doubt, I meet the definition of a media requester. I am the editor of the MuckRock (MuckRock.com) website, which publishes original news content on a daily basis. All of MuckRock's content focuses either on FOIA itself or reports off of documents received via public records requests. Below are a number of the dozens of articles I have written for MuckRock:

https://www.muckrock.com/news/archives/2013/nov/06/mr-de-blasio-open-nypd/

https://www.muckrock.com/news/archives/2013/oct/25/librarian-rebukes-nun-over-comic-books/

https://www.muckrock.com/news/archives/2013/oct/03/foia-shutdown-which-agencies-have-put-their-public/

In addition to my capacity as editor of MuckRock, I am also a freelance journalist whose work has been published in such online and print outlets as the Boston Globe, VICE/Motherboard, The Phoenix, The Progressive and Dig Boston. Here are clips of previous articles that I have written for some of these publications:

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

https://www.bostonglobe.com/metro/2013/10/25/mass-libraries-strikingly-free-censorship/GV3LPCJO4kdzCb3a9HE6HJ/story.html

https://www.motherboard.vice.com/blog/the-nypd-is-foia-proof

http://www.thephoenix.com/boston/news/153301-fung-wahtf/

http://www.digboston.com/boston-news-opinions/2013/10/news-to-us-cambridge-blocks-big-brother/

My coverage of topics from national security and drones to bike politics and bus inspections has been cited by a host of other news outlets at the international, national and local levels. I have received two grants from the Fund for Investigative Journalists, both for projects that revolve around public records investigations.

In short, it could not be clearer that I am, in fact, a journalist.

While I provided the above examples of my work, the DHS Privacy Office has consistently seen fit to ignore it. In so doing, the DHS Privacy Office has flouted the standards established under FOIA for determining fee status.

As I wrote to the DHS Privacy Office, I can understand a certain degree of confusion about the status of MuckRock overall. In addition to conducting original investigations, MuckRock also facilitates users' requests, for which users do pay a nominal processing fee to cover administrative costs. By the Privacy Office's argument, MuckRock's charging a fee for tracking FOIA requests means that each MuckRock user qualifies as a commercial requester. As one of our users so eloquently put it, if anyone who submits a FOIA request via MuckRock is a commercial requester, than so is every citizen who tracks their FOIA requests via Microsoft Excel or another spreadsheet application. This is untenable.

How a requester submits FOIA requests is immaterial to that individual's fee category. Rather, what matters is the purpose to which the requester intends to put the documents. As I confirmed in my original request letter and have repeatedly emphasized over the past weeks, I have no commercial interest in these documents. I have no intent to sell or otherwise profit from the information therein, but rather intend to post them in full online and write about them so that the public can better understand the workings of the Department of Homeland Security and its component agencies. MuckRock doesn't even have any paywall -- these documents will be available to anyone with a computer and curiosity about his or her tax-funded officials. For my part, I will derive only journalistic benefit from the requested documents.

The Privacy Office's insistence that I am a commercial requester is patently false and concerning. I urge you to direct the DHS Privacy Office to apply the clear standard of the FOIA statute and its fee provisions to all requesters. Individuals with no commercial interest in requested documents should not be subject to commercial requester fees under any circumstances, and journalists should be recognized as such.

I thank you for your prompt attention, and I look forward to your response.

Best regards,

Shawn Musgrave
MuckRock