ODAG communications to DOJ OIG re: need for drone policies

Shawn Musgrave filed this request with the Department of Justice, Office of Information Policy of the United States of America.
Tracking # DAG/15-03640, 15- OIG -119
Due March 17, 2015
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 notifications from the Office of the Deputy Attorney General sent to the Inspector General regarding the need for DOJ policies or guidance specific to the use of unmanned aerial systems, aka drones, for surveillance purposes.

Per a September 2013 letter from the Office of the Deputy Attorney General sent to the Inspector General (available here: http://www.justice.gov/oig/reports/2013/a1337.pdf):

"In August 2013, ODAG directed the Office of Legal Policy (OLP) to convene a working group composed of a broad range of DOJ components, including the Office of Privacy and Civil Liberties, to identify and address any policy and legal issues pertaining to the use of UAS for surveillance purposes. This working group will make a recommendation to DOJ leadership on the need for any DOJ policies or guidance specific to UAS, and will work to develop any such policies or guidance as needed. We will notify your office once the internal DOJ working group has reached a conclusion about the need for any DOJ policies or guidance specific to UAS."

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: OIGFOIA (OIG)

Hello:

Attached is the OIG’s acknowledgement to your FOIA request.

Thanks.

From: Shawn Musgrave

Hello -

Please confirm whether I have been categorized as news media for the purpose of fees for 15-OIG-119. I realize that I did not include extensive publication history with regard to drones, and to Justice Department agency drones, in particular:

http://motherboard.vice.com/read/the-fbi-says-its-following-all-the-drone-rules-wont-share-proof

http://motherboard.vice.com/read/the-fbi-cant-find-the-drone-privacy-reports-its-legally-required-to-have

http://motherboard.vice.com/read/every-organization-flying-drones-in-the-us

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

http://motherboard.vice.com/read/the-plan-to-make-drones-a-tool-the-fbi-cannot-do-without

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

Here is a selection of articles I have published on a range of topics in other national media outlets:

https://www.thedailybeast.com/articles/2015/02/05/nypd-social-media-policy-allows-catfishing-with-the-proper-paperwork.html

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

Please confirm my status as a news media requester for the purpose of fees.

Thank you,
Shawn Musgrave
MuckRock

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 11, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #15-OIG-119.

Thank you for your help.

From: OIGFOIA (OIG)

Hello Mr. Musgrave:
The Office of the Inspector General works diligently to process each FOIA request as quickly as possible. We receive numerous requests each day which are processed in chronological order by date of receipt and complexity. We will get to your request shortly but I can not tell you when you can expect a response. You can check back regularly for the status of your request.

For additional information about FOIA, please visit the U.S. Department of Justice website<http://www.usdoj.gov/oip/foi-act.htm>[cid:image001.png@01D072DF.437726A0]<http://www.cdc.gov/Other/disclaimer.html>.
Thanx,
Jeanetta Howard

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 11, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #15-OIG-119.

Thank you for your help.

From: OIGFOIA (OIG)

Hello:

Attached is the OIG’s response to your FOIA request.

Thanks.

From: Shawn Musgrave

Ms. Day -

Per the attached response from the Justice Department OIG, this FOIA has been referred to the ODAG. Please confirm receipt and provide an OIP tracking number.

Thank you,
Shawn Musgrave
Reporter, MuckRock

From: Day, Laurie (OIP)

It has been received and is in for logging at this time. You will receive an acknowledgment once it has been logged and the analyst is able to prepare it and send it out.

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Please see the attached letter.

Thank you,

Aleksandr V. Podolskiy
Attorney Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Shawn Musgrave

Hello,

Please confirm that I have been categorized as a media requester for the purpose of fees, in the event that my fee waiver request is not approved.

Best,
Shawn Musgrave
Reporter, MuckRock

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 11, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #DAG/15-03640.

Thank you for your help.

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Your request is still being processed. If you have any questions please do not hesitate to contact this Office.

Thank you,

Aleksandr V. Podolskiy
Attorney Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Shawn Musgrave

Hello -

Please confirm that I have been categorized as a media requester for the purpose of fees, in the event that my fee waiver request is not approved.

Best,
Shawn Musgrave
Reporter, MuckRock

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

OIP has determined that you do not qualify as news media for fee purposes.

Thank you,

Aleksandr V. Podolskiy
Attorney Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Shawn Musgrave

Hello -

Please justify this failure to classify me as a media requester for the purpose of fees so that I may appeal. I have provided more than adequate publication history in support of my legitimate claim that I have submitted this request in my capacity as a journalist. The bulk of provided clips pertain specifically to unmanned aerial vehicles, the subject of the present FOIA request.

Please note that OIP has classified me as a media requester for many requests in the past. See, for example, the following requests:

AG/15-02852 (F) ; DAG/15-02853 (F) ; ASG/15-02854 (F) (see correspondence at https://www.muckrock.com/foi/united-states-of-america-10/doj-meetings-re-privacy-of-third-parties-in-criminal-investigations-17201/#comm-149555)

AG 15-02856 ; DAG 15-02857 ; ASG 15-02858 (see correspondence at https://www.muckrock.com/foi/united-states-of-america-10/doj-sondra-arquiett-incident-review-order-and-report-17200/#comm-149558)

I have cc'd the FOIA officer responsible for the above requests here so that you may consult with her as to my appropriate designation.

To reiterate, I will appeal my designation should you come to the incorrect conclusion that I am anything other than a media requester. I have won a number of such appeals based on my considerable publication history, particularly regarding drones and other law enforcement technologies.

I look forward to your timely response on this matter. Please let me know if I can supply any additional information to assist you in correcting your designation.

Respectfully,
Shawn Musgrave
Reporter, MuckRock

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

My previous email sent on July 8, 2015, was sent in error. For the purposes of your request No. AG/15-03640 (F) you will be considered a representative of the news media. As a representative of the news media you will not be charged search fees.

Thank you,

Aleksandr V. Podolskiy
Attorney Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Shawn Musgrave

Thank you for your clarification as to my fee status for FOIA DAG/15-03640.

Best,
Shawn Musgrave

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 11, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #DAG/15-03640.

Thank you for your help.

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Please be advised that we are still searching for responsive records. We estimate that it will take about four months to process your FOIA requests. This is a preliminary estimate at this time that will likely be modified as our searching is completed, and the volume and complexity of the material is evaluated. We will be able to provide a more accurate estimate once our searches have been completed and we have conducted an initial review of the responsive material.

We appreciate your patience.
Regards,

Aleksandr V. Podolskiy
Attorney Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 11, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #DAG/15-03640.

Thanks for your help, and let me know if further clarification is needed.

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Please be advised that we are still searching for responsive records. We estimate that it will take about two months to process your FOIA requests. This is a preliminary estimate at this time that will likely be modified as our searching is completed, and the volume and complexity of the material is evaluated. We will be able to provide a more accurate estimate once our searches have been completed and we have conducted an initial review of the responsive material.

Thank you,

Aleksandr V. Podolskiy
Attorney-Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Please be advised that we are still searching for responsive records. We estimate that it will take about a month and a half to process your FOIA requests. This is a preliminary estimate at this time that will likely be modified as our searching is completed, and the volume and complexity of the material is evaluated. We will be able to provide a more accurate estimate once our searches have been completed and we have conducted an initial review of the responsive material.

Thank you,

Aleksandr V. Podolskiy
Attorney-Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Please be advised that we are still searching for responsive records. We estimate that it will take approximately a month to process your FOIA requests. This is a preliminary estimate at this time that will likely be modified as our searching is completed, and the volume and complexity of the material is evaluated. We will be able to provide a more accurate estimate once our searches have been completed and we have conducted an initial review of the responsive material.

Thank you,
Aleksandr V. Podolskiy
Attorney-Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: Podolskiy, Aleksandr V. (OIP)

Mr. Musgrave,

Please be advised that we are still searching for responsive records. Unfortunately, we are still in the process of conducting searches and estimate an additional month to process your FOIA requests. This is a preliminary estimate at this time that will likely be modified as our searching is completed, and the volume and complexity of the material is evaluated. We will be able to provide a more accurate estimate once our searches have been completed and we have conducted an initial review of the responsive material.

Thank you,

Aleksandr V. Podolskiy
Attorney-Advisor
Office of Information Policy
Department of Justice
Phone: 202-514-3642
Fax: 202-514-1009

From: OIP.IR Staff

Dear Mr. Musgrave:

Please see the attached.

Initial Request Staff
Office of Information Policy
U.S. Department of Justice
202-514-FOIA

From: Shawn Musgrave

Hello -

Before I appeal the constructive denial of my request, I wanted to provide additional information that bolster the factual existence of these records within the Office of the Deputy Attorney General. I hope to forgo an appeal, but will submit one within 2 weeks if this request is not processed in good faith.

Much of the following was cited in my original request submitted two and a half years ago. But portions bear repeating and expanding to clarify the timeline of documentation from the DOJ OIG referring to the requested documents. Together, the below suggest that the requested documents do, indeed, exist and should be provided in response to my request.

In February 2015, I requested the following documents: All notifications from the Office of the Deputy Attorney General sent to the Inspector General regarding the need for DOJ policies or guidance specific to the use of unmanned aerial systems, aka drones, for surveillance purposes.

This request stems from one of the recommendations contained in a September 2013 DOJ OIG report, "INTERIM REPORT ON THE DEPARTMENT OF JUSTICE’S USE AND SUPPORT OF UNMANNED AIRCRAFT SYSTEMS (attached and also available online here: http://www.justice.gov/oig/reports/2013/a1337.pdf). The pertinent language from the OIG's recommendation is as follows:
"We recommend that ODAG: [....] Convene a working group comprised of DOJ components using or with an interest in using UAS to: [....] identify and address UAS policy concerns that are shared across components or require coordination among components and other federal agencies." (See p. 17)

In response to this recommendation, the ODAG sent a letter to the OIG (see attached or above URL for a copy, p) a September 2013 letter from the Office of the Deputy Attorney General sent to the Inspector General (available here: http://www.justice.gov/oig/reports/2013/a1337.pdf):

"In August 2013, ODAG directed the Office of Legal Policy (OLP) to convene a working group composed of a broad range of DOJ components, including the Office of Privacy and Civil Liberties, to identify and address any policy and legal issues pertaining to the use of UAS for surveillance purposes. This working group will make a recommendation to DOJ leadership on the need for any DOJ policies or guidance specific to UAS, and will work to develop any such policies or guidance as needed. We will notify your office once the internal DOJ working group has reached a conclusion about the need for any DOJ policies or guidance specific to UAS." (See Appendix I, p. 19 and 20).

Citing the ODAG's response, the September 2013 OIG report indicates the following as to the closure of the pertinent recommendation:

"This recommendation can be closed when we obtain a list of components comprising the DOJ working group and receive evidence
that the DOJ working group has met, considered the substance of any privacy-related deliberations as well as the scope and content of any UAS-related policies resulting from DOJ’s involvement in the UAS interagency process, and that the working group has reached a conclusion on whether DOJ-specific policy to address privacy and legal concerns of UAS operations is warranted." (See p. APPENDIX IV, p. 30 and 31.)

This second requirement, that the OIG receive a evidence that the DOJ working group on UAS has reached a conclusion on the need for DOJ-specific policy on any privacy or legal concerns, underlies my FOIA request. The Justice Department drafted a policy, which the ODAG was kind enough to provide, which suggests that the relevant working group may have determined that such a policy was necessary. But for the OIG's recommendation to be closed, that agency needed to received notice to the working group's determination on that front.

In a subsequent report published in March 2015, "Audit of the Department of Justice's Use and Support of Unmanned Aircraft Systems" (see attached or online here: https://oig.justice.gov/reports/2015/a1511.pdf), the DOJ OIG noted the following as to recommendations from the September 2013 report that remained outstanding:

"There remains one open recommendation regarding the DOJ working group, and ODAG officials told us that, as of December 2014, it is waiting to finalize DOJ-wide UAS policies until a broader interagency taskforce addressing UAS use across the federal government issues guidance." (See p. 2).

"In addition, the interim report recommended that the ODAG convene a working group of pertinent components to identify crosscutting UAS issues, develop guidelines, and coordinate UAS needs with other federal agencies. DOJ agreed with the recommendations and, since the report was issued, has progressed in implementing them. DOJ stated that the UAS working group began meeting in October 2013 and is continuing to meet periodically. We confirmed that officials from the FBI, ATF, USMS, DEA, OJP and COPS have participated in these meetings. The DOJ Office of Privacy and Civil Liberties has also participated." (See p. 9)

In a March 2015 letter sent from the ODAG to the DOJ OIG (see p. 15 of the March 2015 OIG report), the ODAG represented that, as a result of the September 2013 report:

"As a result of that report, the Department, at the direction of the Office of the Deputy Attorney General (ODAG), convened a DOJ-wide UAS working group to address policy issues related to the Department's use of UAS."

After the publication of the September 2013 report, the ODAG convened the working group, and by the OIG's description, made progress toward closing out the pertinent recommendation.

Finally, in a document dated September 30, 2015 (attached and available online here: https://oig.justice.gov/reports/2016/r160119.pdf) that collates outstanding recommendations from its audits, the OIG did not list the relevant recommendation from its September 2013 report that underlies this request. The sole recommendation that remained outstanding regarding audits of UAS, according to this document, was a recommendation from the March 2015 report. This suggests that the ODAG successfully closed out the pertinent recommendation from the September 2013 report.

By the OIG's criteria, this recommendation could only have been closed through submission of documentation ("evidence", by the September 2013 report's wording) as requested in this FOIA request. It seems that the documentation requested herein was transmitted by the ODAG to the OIG between March 2015 and September 30, 2015.

In light of the above, it seems unlikely that the requested documents simply do not exist. As such, I ask that you conduct another good faith search and provide the requested records in keeping with the ODAG's obligations under the Freedom of Information Act.

Respectfully,
Shawn Musgrave

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