Password-Protected FOIA Authority (Immigration and Customs Enforcement)
| Tracking # |
2022-ICAP-01052 |
| Multi Request | Password-Protected FOIA Authority |
| Submitted | April 27, 2022 |
| Est. Completion | None |
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Communications
From: Andrew Free
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
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on June 30, 2022. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Immigration and Customs Enforcement
July 05, 2022 Andrew Free MuckRock News DEPT MR 128122 263 Huntington Ave Boston, MA 02115 RE: ICE FOIA Case Number 2022-ICFO-22424 Dear Mr. Free: This acknowledges receipt of your June 30, 2022, Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE), for 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. Your request was received in this office on June 30, 2022. PLEASENOTE: Requesters seekingresponsive records from the U.S. Immigration and Customs Enforcement (ICE) areencouraged to create a DHS FOIA Public Access Link (PAL) accountat: . Creating a PALaccount will allow you to directly submit your FOIA request to ICE and trackthe status of your request. In PAL, you can view your prior PAL submissions,sent correspondences, and responsive records. Although PAL is preferred, ICEFOIA will continue to accept FOIA requests via email at (https://foiarequest.dhs.gov/) https://foiarequest.dhs.gov or via regularmail at U.S. Immigration and Customs Enforcement, Freedom ofInformation Act Office, 500 12 ICE-FOIA@ice.dhs.gov th St. SW, STOP 5009, Washington,DC 20536-5009. Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Per Section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, ICE processes FOIA requests according to their order of receipt. Although ICE’s goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10-day extension of this time period. As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, ICE will invoke a 10-day extension for your request, as allowed by Title 5 U.S.C. § 552(a)(6)(B). If you care to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner. Provisions of the FOIA allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS Interim FOIA regulations, as they apply to media requesters. As a media requester, you will be charged 10 cents per page for duplication; the first 100 pages are free. We will construe the submission of your request as an agreement to pay up to $25.00. You will be contacted before any further fees are accrued. We have queried the appropriate program offices within ICE for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Your request has been assigned reference number 2022-ICFO-22424. Please refer to this identifier in any future correspondence. To check the status of an ICE FOIA/PA request, please visit . Please note that to check the status of a request, you must enter the 2022-ICFO-22424 tracking number. If you need any further assistance or would like to discuss any aspect of your request, please contact the FOIA office. You may send an e-mail to ice-foia@ice.dhs.gov, call toll free (866) 633-1182, or you may contact our FOIA Public Liaison, Marcus Francis, in the same manner. Additionally, you have a right to right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. (http://www.dhs.gov/foia-status) http://www.dhs.gov/foia-status
Regards,
ICE FOIA Office
Immigration and Customs Enforcement
Freedom of Information Act Office
500 12th Street, S.W., Stop 5009
Washington, D.C. 20536-5009
Telephone: 1-866-633-1182
Visit our FOIA website at www.ice.gov/foia
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on June 30, 2022. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Andrew Free
We hereby appeal the agency's failure to respond within the timing provisions set forth in the Act.
From: Immigration and Customs Enforcement
**Please Do Not Respond Directly -This email has been sent on behalf of ice-foia@dhs.gov**
We have received your Freedom of Information Act request for FOIA APPEAL and have assigned it tracking number 2022-ICAP-01052. Please refer to the attached Acknowledgement Letter for more information.
ICE FOIA.
From: Immigration and Customs Enforcement
Mr. Free,
ICE's final response to your FOIA request, 2022-ICAP-01052, for FOIA APPEAL is attached.
Please note that the attachment may be password protected. If you are prompted to enter a password when opening the attachment and you did not receive a password it may be in your junk/spam folder.
Sincerely,
ICE FOIA
From: Immigration and Customs Enforcement
Good morning
Andrew Free
MuckRock News
DEPT MR 128122
263 Huntington Ave
Boston, MA 02115
The following FOIA request 2022-ICFO-22424 you are inquiring information for is not a DHS OIG FOIA request please contact Immigration and Customs Enforcement for information regarding your request.
Immigration and Customs Enforcement
Freedom of Information Act Office
500 12th Street, S.W., Stop 5009
Washington, D.C. 20536-5009
Telephone: 1-866-633-1182
Visit our FOIA website at www.ice.gov/foia<https://urldefense.us/v3/__http:/www.ice.gov/foia__;!!BClRuOV5cvtbuNI!XhI6tebAzioYcocFyUqQo1pYhJsUlOGr2t8JPrYsrk7bXXSrVsOgxKcIbj5odEtazz62XUE$>
-
~WRD0000
From: Andrew Free
We once again appeal your agency’s failure to respond to this request in a timely manner. We note that it is consistent with the agency pattern and practice of untimely determinations noted in Owen v. ICE (CDCal). https://www.documentcloud.org/documents/23689456-owen-v-ice-cd-cal-pattern-practice-declaratory-judgment
Andrew Free
#DetentionKills Transparency Initiative
Al Otro Lado
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