Password-Protected FOIA Authority (Department of Homeland Security)

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

In recent years, your agency FOIA Office has required FOIA requestors to access agency records using a government-created password that is unique to the file containing responsive documents. The FOIA Office accomplishes this either through requiring FOIA requestors to utilize a 6-8 character password delivered by a second or separate communication.

Practically speaking, this doubles the number of communications the agency must generate in turning over responsive documents, and prevents widespread public dissemination of the records by restricting their access only to the requestor receiving the password. Your agency is thus doubling the work it does at one point of the FOIA response process while reducing significantly the transmissibility of the public records it provides. This is occurring at a time when multi-year backlogs and court orders plague timely access to vital information about the agency’s function.

All of this would be understandable and unavoidable if Congress required such actions. But it did not. The Freedom of Information Act and DHS’s FOIA regulations contain no language requiring public records to be password-protected. See 5 USC 552, and 6 CFR 5.1 et seq. Indeed, these authorities arguably prohibit such actions, because they constitute a conversion of the records from their original format into one constituting a completely new, password-protected document.

Please provide any agency record documenting: (a) the legal authority from which your FOIA Office claims it derives the power to place non-exempt public records responsive to FOIA requests into a password-protected document.

(b) the Standard Operating Procedure used by your FOIA Office to assign non-exempt records a password.

(c) any contract materials with any third-party reflecting monies paid by your agency to outside contractors for password-protecting FOIA documents.

(d) any record reflecting the total time FOIA Office personnel dedicated during FY20, FY21 and FY22 (to date) to password-protecting records.

(e) any governing policy denoting when password protection is appropriate, and when it is not.

Because your agency’s FOIA Office suffers from longstanding, unabated backlogs and extended, multi-year processing times of the kind expressly condemned by Congress in amending the FOIA, because your agency’s password protection practice appears to have no basis in law, and because this practice represents a potential obstacle to every FOIA requestor, including those seeking expedited processing, this policy impacts the substantial due process rights of requestors, and raises serious questions as to your Office’s capacity to discharge its obligations under the law, threatening public confidence in its functioning, we respectfully request expedited processing pursuant to 6 CFR 5.5(e).

Thank you,

Andrew Free
#DetentionKills Transparency Initiative
Al Otro Lado

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, 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,

Andrew Free

We hereby appeal the agency's failure to respond within the time limits specified in the Act.