DHS social media risk assessment

Shawn Musgrave filed this request with the Department of Homeland Security of the United States of America.
Tracking # 2014-HQFO-00006 ; 2014-HQAP-00005
Est. Completion None
Status
Withdrawn

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:

DHS Office of the Chief Information Security Officer, Social Media Risk Assessment Report, May 15, 2012

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

From: FOIA OIG

Mr. Musgrave,

After reviewing the below email, DHS-OIG is referring your request to the DHS Privacy Office for handling. You may follow up with DHS Privacy at foia@hq.dhs.gov or (866) 431-0486.

From: Shawn Musgrave

DHS Privacy:

Please confirm that this FOIA request has been transferred to your attention, as indicated by the DHS OIG FOIA office below.

Thank you.

From: Day, Mia

Good Afternoon,
Attached is our acknowledgment to your DHS FOIA request.  If you need to contact this office again concerning your request, please provide the DHS reference number. This will enable us to quickly retrieve the information you are seeking and reduce our response time. This office can be reached at 866-431-0486.

From: Shawn Musgrave

Ms. Day,

Thank you for acknowledging 2014-HQFO-00006. 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 today.

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.

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 clearer that I am a media requester.

Respectfully,

Shawn Musgrave
MuckRock

From: FOIA

Good morning,

We are in receipt of your request, the request number is 2014-HQFO-00006.

From: Shawn Musgrave

Ms. Day,

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

From: FOIA

Good Afternoon,

Based upon further review, we are standing by our original assessment that Muckrock is a commercial requester for 2014-HQFO-00006.

You may appeal by sending your appeal to Associate General Counsel (General Law), Mailstop 0655, U.S. Department of Homeland Security, Washington, D.C. 20528, following the procedures outlined in the DHS regulations at 6 C.F.R. § 5.9. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia<http://www.dhs.gov/foia> .
Regards,

The Privacy Office
U.S. Department of Homeland Security
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655
Phone: 202-343-1743 or 866-431-0486
Fax: 202-343-4011
E-mail: foia@hq.dhs.gov<mailto:foia@hq.dhs.gov>

From: Shawn Musgrave

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

November 6, 2013

To Whom It May Concern:

This is an appeal of fee status for 2014-HQFO-00006 (attached, along with all correspondence). 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

From: Day, Mia

Mr. Musgrave,

Attached is our acknowledgement letter to your request 2014-HQFO-00006.

From: Meus, Lauren M CIV

Mr. Musgrave:

Please find attached the FOIA Appeal decisions for 2014-HQAP-00005, 2014-HQAP-00006, 2014-HQAP-00007 and 2014-HQAP-00008 issued by Judge Bruce Tucker Smith's office.

Thank you,

Lauren Meus
Hearing Docket Clerk
U.S. Coast Guard

From: Shawn Musgrave

Hello,

While I received the fee waiver appeal determination, I have yet to receive any further update on the processing of this request itself. Please advise.

Thank you.

From: Day, Mia

Good afternoon, Attached is a copy of our final response to your request, originally sent on February 21, 2014.  If you need to contact this office again concerning your request, please provide the DHS reference number. This will enable us to quickly retrieve the information you are seeking and reduce our response time. This office can be reached at 866-431-0486. Regards, DHS Privacy Office Disclosure & FOIA Program
STOP 0655
Department of Homeland Security
245 Murray Drive, SW
Washington, DC 20528-0655
Telephone:  1-866-431-0486 or 202-343-1743
Fax:  202-343-4011
Visit our FOIA website

From: Shawn Musgrave

Associate General Counsel (General Law)
U.S. Department of Homeland Security
Mailstop 0655,
Washington, D.C. 20528

May 12, 2014

To Whom It May Concern:

This is an appeal of fee category for FOIA 2014-HQFO-00006.

In its response letter (attached), the DHS Privacy Office has categorized me as a commercial requester.

As I have appealed repeatedly over the past several months, DHS and its component agencies persist in categorizing me as commercial (and in some cases of more gracious "administrative error," as non-commercial/other) when my correct category for the purposes of fees under FOIA is as a representative of the news media.

As appeals authorities for DHS have found in recent FOIA cases (see, for instance, the determination of appeal 20014-HQAP-00032 as submitted by Robert Delaware, another MuckRock user), here DHS FOIA staff have 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 has provided no basis for determining otherwise.

In the attached appeal determination, 2014-HQAP-00006, Katy J.L. Duke determined that I had not adequately substantiated my claim to a fee waiver as a representative of the news media. Her determination did not address whether DHS had substantiated its classification of my fee category as a commercial requester. In light of that, I hereby assert that my appropriate fee category is as a representative of the news media, or else "other/non-commercial" should that standard not be met below.

I have substantiated in countless previous instances that my intentions for requested documents are journalistic in nature. The requested documents concern a matter of broad public interest, namely the means by which DHS monitors social media and the privacy protections in place to prevent abuses. Such evaluations are of particular public interest given the pilot of such social media monitoring initiatives at the 2010 Winter Olympics and at a handful of other high-profile events. I have written about this initiative previously (see below).

The requested documents will contribute to public understanding of the DHS social media monitoring initiative's history and evolution, as well as steps taken by DHS to address potential privacy concerns.

Finally, the requested documents will be synthesized into a distinct journalistic work that will be disseminated to the public. My basis for this claim is not only that the requested documents will be posted in full online for the general public on MuckRock (although such posting is relevant as it relates to widespread dissemination in the public interest). My history of publication in a number of outlets — including via MuckRock's news coverage, as well as a range of print and online publications — substantiates my claim sufficiently to justify my categorization as a journalist for this request. This is particularly true for matters related to unmanned aerial systems, for which I have amassed a considerable body of work.

In keeping with the 2007 FOIA amendments and procedures for determining fee status as a journalist, here is a sampling of recent articles as proof of publication history:

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

betaboston.com/news/2014/03/05/a-vast-hidden-surveillance-network-runs-across-america-powered-by-the-repo-industry/

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

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

http://motherboard.vice.com/blog/syracuse-home-to-an-air-force-drone-squadron-banned-drones

The above is more than sufficient basis for amending my fee categorization from commercial to representative of the news media. In light of the above, I request that my categorization be changed immediately, and that DHS and its component agencies cease their ridiculous claims that my requests are appropriately categorized as commercial for the purposes of FOIA fees.

Respectfully,

Shawn Musgrave

From: Lasko, Linda

Mr. Musgrave,

Attached, please find a final response letter related to your May 12, 2014 appeal letter.

Sincerely,

U.S. Department of Homeland Security

202-343-1743 (Main FOIA Number)
Visit our FOIA website

This communication, along with any attachments, is covered by federal and state law governing electronic communications and may contain confidential and legally privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this message is strictly prohibited. If you have received this in error, please reply immediately to the sender and delete this message. Thank you.

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