Napolitano emails with Charles K. Edwards (DHS)

To Whom It May Concern:

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

All emails between Janet Napolitano and Charles K. Edwards from January 1, 2010 to December 31, 2013.

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

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

May 5, 2014

To Whom It May Concern:

This is an appeal of fee category for FOIA 2014-HQFO-00480.

In the initial acknowledgement letter (attached), the Department of Homeland Security Privacy Office first categorized me as a non-commercial requester. A matter of hours later, DHS FOIA staff issued a "revised" acknowledgement letter (also attached), in which it clarified:

"Due to an administrative error in my previous letter, I meant to place you in the requester fee
category as commercial, and not non-commercial."

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 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 has provided no basis for determining otherwise.

Furthermore, I have substantiated in countless previous instances that my intentions for the requested documents are journalistic in nature. The requested documents concern a matter of broad public interest, namely the interactions between the former Secretary of Homeland Security and an Acting Inspector General deemed by congressional committee to have committed a number of missteps in carrying out his duties. The requested documents will contribute to public understanding of these allegations and congressional findings in that communications between the former Secretary and Mr. Edwards will add further detail and content to their relationship and interactions during their respective tenures.

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.

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/2013/dec/15/boston-police-close-alpr-program/

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

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

May 8, 2014

To Whom It May Concern:

This is an appeal for denial of records in FOIA request 2014-HQFO-00480, in which I requested:

"All emails between Janet Napolitano and Charles K. Edwards from January 1, 2010 to December 31, 2013."

Per the attached letter, DHS FOIA staff failed to locate any responsive records, and noted that "Former Secretary Napolitano did not have a DHS email account and did not use email."

While Ms. Napolitano did not send email on her own behalf, she certainly had staff send emails on her behalf. I have attached one such email here, in which a redacted staffer forwarded a message to DHS staff on behalf of Ms. Napolitano.

Please note that my request was not restricted solely to emails sent from Ms. Napolitano's (non-existent) email address, but rather those between Napolitano and Mr. Edwards over the indicated three years. Since it was common knowledge within DHS that Ms. Napolitano did not use email herself, but had staff send emails on her behalf, a good faith search in all locations where staff might reasonably suppose responsive documents could be found ought to have included reviewing email accounts of Ms. Napolitano's former staffers for communications sent on behalf of the former Secretary.

Since the DHS Privacy Office has provided no indication that it conducted any such search, I appeal the adequacy of the search and request that you remand this request to the DHS Privacy Office for further processing.

Best,

Shawn Musgrave