Quiet Skies and Silent Partner records

Dear Transportation Security Administration:

This letter is a formal Freedom of Information Act request for the following records.

This is also a formal evidence preservation demand. The records requested are material evidence to ongoing litigation. You must take immediate action to preserve ALL such evidence, and should immediately contact agency in-house and litigation counsel. See "Fiat Fiendum ESI template" section below.

# Background

This request is by reference to:

A. Boston Globe's reports about Quiet Skies,
1. July 28, 2018: <https://apps.bostonglobe.com/news/nation/graphics/2018/07/tsa-quiet-skies>
2. July 30, 2018: <https://www.bostonglobe.com/metro/2018/07/30/lawmakers-demand-answers-quiet-skies-surveillance-program-after-globe-report/tQa7Y5SHFJEbo2z1RHwbYM/story.html>
3. Aug. 3, 2018: <https://www.bostonglobe.com/news/nation/2018/08/03/what-you-need-know-about-quiet-skies-program/XnFsW50Xh8lsAVdIqzqE1H/story.html>
4. Aug. 14, 2018: <https://www.bostonglobe.com/metro/2018/08/14/quiet-skies-surveillance-program-undergo-inspector-general-review/Qqd379Wc79yMEFGOSEr0EO/story.html>

B. the testimony of David Pekoske to Congress re Quiet Skies, at:
1. Senate Commerce, Science, & Transportation Committee - Keeping Our Skies Secure: Oversight of the Transportation Security Administration - Sept. 5, 2018
2. House Oversight & Government Reform Committee - Examining Misconduct and Retaliation at TSA - Sept. 26, 2018

See attached transcripts from _Sai v Pekoske_, No. 15-2356 (1st Cir., filed Feb. 12, 2019), exhibit 1.

C. the testimony, related to Quiet Skies and Silent Partner, of TSA FRCP 30(b)(6) representative Hao-y Tran Froemling in El Hady v Kable, No. 1:16-cv-375 (E.D. VA.), ECF No. 306-29, filed March 12, 2019

D. the letter requests of:
1. Sen. Markey to David Pekoske, July 30, 2018: <https://www.markey.senate.gov/imo/media/doc/Quiet%20Skies%20Program.pdf>
2. Rep. Biggs to David Pekoske, Aug. 1, 2018: <https://biggs.house.gov/sites/biggs.house.gov/files/quiet skies social media letter.pdf>
3. Rep. Lynch to Rep. Gowdy, July 30, 2018: <https://lynch.house.gov/sites/lynch.house.gov/files/Quiet%20Skies%20TSA%20Program%20Hearing%20Request%20Letter.pdf>
4. Sens. Nelson & McCaskill to David Pekoske, late Aug. 2018, referenced in Rep. Nelson's opening statement: <https://www.commerce.senate.gov/public/index.cfm/hearings?Id=9566D9EB-12AF-4270-9E18-3731714DFC44&Statement_id=04B56DBA-E774-4B7D-A3F5-3328E9CFF0D3>

E. TSA documents:
1. Facts About the "Quiet Skies", Aug. 22, 2018: <https://www.tsa.gov/blog/2018/08/22/facts-about-%E2%80%9Cquiet-skies%E2%80%9D>
2. Silent Partner and Quiet Skies, DHS/TSA/PIA-018(i), April 19, 2019 <https://www.dhs.gov/sites/default/files/publications/pia-tsa-spqs018i-april2019_1.pdf>
3. DHS/TSA PIA-018 revisions: -018, -018(a) through -018(b), and -018(e) through -018(i)
4. DHS/TSA PIA-018 webpage, lacking any link for revisions -018(c) and -018(d), or explanation thereof
5. DHS/TSA SORNs 001, 011, and 019
6. Quiet Skies checklist, attached to Boston Globe story
7. Quiet Skies bulletin, attached to Boston Globe story

F. The FOIA requests re Quiet Skies of:
1. CJ Ciaramella, Jul. 29, 2018, 2018-TSFO-372, <https://www.muckrock.com/foi/united-states-of-america-10/tsa-memoranda-re-quiet-skies-program-58758/>
2. Jesse Yeager, Jul. 7, 2018, 2018-TSFO-375
3. Emily Crose, Aug. 1, 2018, 2018-TSFO-381, <https://www.muckrock.com/foi/united-states-of-america-10/quiet-skies-targeting-transgender-fliers-58888/>
4. David Smith, Aug. 2, 2018, 2018-TSFO-374
5. Joce Sterman, Aug. 5, 2018, 2018-TSFO-386
6. Ehid Zhou (EPIC), Aug. 7, 2018, 2018-TSFO-389, <https://epic.org/foia/dhs/tsa/Quiet-Skies/EPIC-18-07-31-TSA-FOIA-20180731-Request.pdf>
7. Ryan Suto, Aug. 13, 2018, 2018-TSFO-401
8. Hugh Handeyside (ACLU), Aug. 20, 2018, 2018-TSFO-435, <https://www.aclu.org/sites/default/files/field_document/quiet_skies_foia_8.20.18.pdf>
9. Chicago One, Aug. 21, 2018, 2018-TSFO-433

G. The litigation re Quiet Skies, of:
1. el Ali v Sessions, No. 8:18-cv-2415 (D. Md.)
2. El Hady v Kable, No. 1:16-cv-375 (E.D. VA.)
3. Sai v. Pekoske, No. 15-2356 (1st Cir.)

As a courtesy, and to prevent you from claiming ignorance, I have attached courtesy copies of (nearly) all of the above as a PDF portfolio file, containing the following (optimized to reduce file size and make text available):
2010-04-13 SORN DHS-TSA 011 Transportation Security Intelligence Service Files - 75 FR 18867, 2019-08-21.pdf
2015-01-05 SORN DHS-TSA 019 Secure Flight Records - 80 FR 233, 2019-08-21.pdf
2018-07-28 Boston Globe - Quiet Skies program - Doc-Bulletin-2.pdf
2018-07-28 Boston Globe - Quiet Skies program - Doc-Checklist-2.pdf
2018-07-28 Boston Globe report Welcome to the Quiet Skies 2019-08-21.pdf
2018-07-30 Boston Globe followup re Quiet Skies 2019-08-21.pdf
2018-07-30 Rep. Lynch to Rep. Gowdy hearing request re Quiet Skies.pdf
2018-07-30 Sen. Markey letter re Quiet Skies Program.pdf
2018-07-31 EPIC FOIA request re Quiet Skies.pdf
2018-08-01 Rep. Biggs letter re Quiet Skies.pdf
2018-08-03 Boston Globe followup re Quiet Skies 2019-08-21.pdf
2018-08-14 Boston Globe followup re Quiet Skies 2019-08-21.pdf
2018-08-20 ACLU FOIA request re Quiet Skies.pdf
2018-08-22 TSA Facts about the Quiet Skies blog post 2019-08-21.pdf
2018-08-28 SORN DHS-TSA-001 Transportation Security Enforcement Record System - 83 FR 43888, 2019-08-21.pdf
2018-09-05 Pekoske written testimony to Senate Commerce Comm. 2019-08-21.pdf
2018-09-05 Senate Commerce Committee hearing and majority statement 2019-08-21.pdf
2018-09-05 Senate Commerce Committee hearing minority statement 2019-08-21.pdf
2019-04-19 DHS-TSA PIA-018(i) Silent Partner and Quiet Skies.pdf
2019-05-10 DHS-TSA PIA-018 Secure Flight webpage 2019-08-21.pdf
Elhady v Kable VAED 1-16-cv-375 2019-03-12 306-32 Ex 29 - 2018-10-04 Froemling depo.pdf

# Expedited processing for part A.1.a

It appears that David Pekoske, the top official of your agency, perjured himself repeatedly to both houses of Congress - and furthermore that your litigation counsel, Sharon Swingle and Michael Shih (and the DoJ), violated ABA Formal Op. 87-353, Model Rule 3.3 by failing to disclose Pekoske's false statements in sworn testimony to the First Circuit in the case Sai v Pekoske.

I have therefore moved for sanctions against your counsel for their violation of their duty of candor to the tribunal. See Sai v. Pekoske, No. 15-2356 (1st Cir.), motion for judicial notice (Feb. 12, 2019); supp. aff. (April 5, 2019); and motion for sanctions (Aug. 2, 2019).

An adequate response to request A.1.a below, which asks for the alleged 2011/2012 documents and PIA sections that Adm. Pekoske referenced in his sworn testimony, would disprove the allegation of perjury and trigger the automatic withdrawal provision of the motion for sanctions.

This motion for sanctions is currently pending, and the First Circuit Court of Appeals has an immediate and pressing need to know whether or not the document exists.

I therefore request expedited processing as to this single sub-component of the request.

# Primary request

A. Quiet Skies documents

1. Pekoske's testimony

a. the documents referenced by Pekoske in the statements:

i. "On the Quiet Skies program. This program is not a new program, but it is an intelligence-driven, risked-based rules program that’s been in place since 2011. Privacy Impact Statements have been filed and updated..."
ii. "Sir, the Quiet Skies program is not a new program. It’s been in existence since about 2011, 2012."
iii. "Those records are retained for 2 years."
iv. "This program is part of a Privacy Impact Assessment that’s been published on the DHS website for years, and we do use the Travel Vetting System that Customs and Border Protection employs."
v. "importantly it is not a new program either. Quiet Skies has been around since 2012. The Privacy Impact Statements have been published and you know that information is out there available to the public to see.

In particular, and with top priority for expedited treatment, this means:
* the documents, dated 2011 or 2012, state the initiation of the Quiet Skies program
* the Privacy Impact [Assessments] that cover the Quiet Skies program, and were published prior to DHS/TSA PIA-018(i) (2019), i.e. "years" ago

For the PIA portion of this sub-request *only*, the "all parts of the record" provision below is expressly countermanded, and the holding of AILA v EOIR, 830 F.3d 667 (D.C. Cir. 2016) is expressly waived.

For the PIA portion of this subrequest, rather than providing the entire responsive PIA, you are to provide *only* the portion(s) of the PIA(s) which Pekoske referenced in his testimony.

If there is no responsive record to either part of this subrequest - i.e. if Pekoske committed perjury - you are to provide an explicit statement saying so.

In either case, this sub-portion is to be processed on an expedited basis.

b. the evidence underlying Pekoske's statements:

i. "there is, I assure you, strong oversight of this program by the Department. I am confident that it has reduced risk for nearly 7 years."
ii. "Quiet Skies is a intelligence-based risk assessment program, sir, that’s operated by rules. And so the rule set that’s reviewed continuously, and changes to those rules can only be approved by myself or my deputy."
iii. "The data is stored in our Intelligence Officer and our intelligence professionals have access to that information."
iv. "We, by our rules, want to see a certain number of encounters before they’re removed from that program."
v. "I would say that it’s a rules-based program that assesses risk."
vi. "People who are selected for Quiet Skies based on patterns of travel, in our view, informed by intelligence, represent more risk than other passengers do."
vii. "We take into consideration a traveler’s record."
viii. "We do not take into consideration a traveler’s race or religion."
ix. "it would be a combination of the name and other criteria."
x. "Department of Justice may, in certain circumstances [participate in Quiet Skies], but it wouldn’t be based just on Quiet Skies."
xi. "[Approximately how many people has TSA monitored so far under the program?] I’d be happy to provide them to you for the record, because we do record those numbers."
xii. "I don’t believe anybody has been arrested or prosecuted. However, people that are in the Quiet Skies program have eventually been determined to be part of a larger Selectee pool based on what the Quiet Skies program…"
xii. "there’s no particular plot that’s been foiled as a result"
xiii. "there is evidence that it has transitioned some passengers identified in Quiet Skies to the Known or Suspected Terrorists List. Significant numbers."
xiv. "It doesn't surveil the general public."
xv. "It surveil and puts Air Marshals on flights of people that we think present more risk in flight."
xvi. "It's a risk based program consistent with all the law and direction that we've received from the Congress"
xvii. "it's a very beneficial intelligence driven risk based program that results in better utilization of the Federal Air Marshal Service"

c. in relation to either of the two hearings, whether before or after either hearing, Pekoske's:
i. notes
ii. briefings
iii. communications with any Executive or Legislative Branch members or staff

d. in relation to the letters of Sens. Markey, Nelson, & McCaskill, and of Reps. Biggs, Lynch, & Gowdy:
i. the letters
ii. all related correspondence between any DHS employee and any Legislative Branch member or staff (e.g. responses, follow-ups, etc)
iii. all related correspondence within DHS
iv. all related correspondence between any DHS employee and any Executive Branch member or staff
v. all records responsive to the requests made in each of the letters, or that would address the questions asked in those letters

Please note, as provided below in the standard template language, that email metadata is explicitly requested even if you decide to withhold email content.

2. All emails
i. with the phrase "Quiet Skies" or "Silent Partner" in any part of the email, including attachments

ii. to or from
A. any TSA Administrator or Assistant Administrator, including previous or acting ones
B. TSA Contact Center
C. TSA Office of Legislative Affairs
D. TSA Office of Strategic Communications & Public Affairs
E. TSA Office of Chief Counsel
F. TSA Office of the Executive Secretariat
G. TSA Office of Civil Rights & Civil Liberties

iii. from January 1, 2010 to the date you conduct the search.

Please note the "all parts of the record" provisions below re email metadata, threads, and attachments.

Please further note that I demand the original, native form of these emails (not printouts, PDFs, rasterizations, etc). You should request that the Chief Information Officer conduct a search against TSA's actual back-end email database, and provide the emails in .eml format (plus any attachments in the attachment's original format).

3. DHS/TSA PIA-018(c) and DHS/TSA PIA-018(d)

4. All training materials related to Quiet Skies or Silent Partner.

5. All correspondence related to the identified FOIA requests above, including all provisions of requests parts B and C below as applied to them, and all records responsive to each of those requests.

Please note that for this portion of the request, I expressly invoke and demand that you comply with the "three request rule", 5 USC 552(a)(2)(D)(ii).

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Fiat Fiendum ESI template
Version 5.0
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# ESI template structure

All content after the version number line above, until the next ### section or my signature, is part of my standard evidence preservation demand template and identical between all such demands.

The template provisions specify how you are to preserve data from spoliation. They apply to this request, but are not specific to it.

If anything in the request-specific section above explicitly overrides anything in this template section, the request-specific section controls. If there is any ambiguity about such an override, please ask me for clarification.

The version number above is provided to make it easier for you to process my evidence preservation demands. Since all content in the template section is identical for my evidence preservation demands, you need track only the request-specific portions (at the top) and the latest versions of my general provisions.

Please read each new version carefully, as updates generally contain substantive changes.

# This is a legal demand.

Failure to obey the instructions below may result in spoliation of evidence and/or obstruction of justice, which are serious offenses, for which you can be personally held in contempt of court. If spoliation occurs, I will seek all appropriate remedy, including sanctions.

You should immediately forward this demand to your agency's in-house and litigation counsel.

# ESI preservation

## ESI you may use to support claims or defenses in this case

Adequate preservation of ESI requires more than simply refraining from efforts to destroy or dispose of such evidence. You must also intervene to prevent loss due to routine operations and employ proper techniques and protocols suited to protection of ESI. Be advised that sources of ESI are altered and erased by continued use of your computers and other devices. Booting a drive, examining its contents or running any application will irretrievably alter the evidence it contains and may constitute unlawful spoliation of evidence. Consequently, alteration and erasure may result from your failure to act diligently and responsibly to prevent loss or corruption of ESI.

Nothing in this demand for preservation of ESI should be understood to diminish your concurrent obligation to preserve document, tangible things and other potentially relevant evidence.

## Electronically stored information

This information preservation demand concerns both physical and electronic information.

You should anticipate that much of the information subject to disclosure or responsive to discovery in this matter is stored on your current and former computer systems and other media and devices (including personal digital assistants, voice-messaging systems, online repositories and cell phones).

Electronically stored information (hereinafter “ESI”) should be afforded the broadest possible definition and includes (by way of example and not as an exclusive list) potentially relevant information, such as:
* communications (e.g., e-mail, voice mail, instant messaging);
* documents (e.g., Word documents and drafts);
* spreadsheets and tables (e.g., Excel worksheets);
* image and facsimile files (e.g., .PDF, .TIFF, .JPG, .GIF images);
* sound and/or video recordings (e.g., .WAV, .MP3, .AVI, and .MOV files);
* databases (e.g., Access, Oracle, SQL Server data, SAP);
* back up and archival files (e.g., Zip, .GHO, tapes, etc); etc.

ESI resides not only in areas of electronic, magnetic and optical storage media reasonably accessible to you, but also in areas you may deem not reasonably accessible. You are obliged to preserve potentially relevant evidence from both these sources of ESI, even if you do not anticipate producing such ESI.

The demand that you preserve both accessible and inaccessible ESI is reasonable and necessary. Pursuant to amendments to the Federal Rules of Civil Procedure that have been approved by the United States Supreme Court (eff. 12/1/06), you must identify all sources of ESI you decline to produce and demonstrate to the court why such sources are not reasonably accessible. For good cause shown, the court may then order production of the ESI, even if it finds that it is not reasonably accessible. Accordingly, even ESI that you deem reasonably inaccessible must be preserved in the interim so as not to deprive the Plaintiff's right to secure the evidence or the Court of its right to adjudicate the issue.

## Preservation Requires Immediate Intervention

You must act immediately to preserve potentially relevant ESI including, without limitation, information with the earlier of a Created or Last Modified date on or after [DATE] through the date of this demand and concerning:

# Suspension of Routine Destruction

You are directed to immediately initiate a litigation hold for potentially relevant ESI, documents and tangible things, and to act diligently and in good faith to secure and audit compliance with such litigation hold. You are further directed to immediately identify and modify or suspend features of your information systems and devices that, in routine operation, operate to cause the loss of potentially relevant ESI. Examples of such features and operations include:
* Purging the contents of e-mail repositories by age, capacity or other criteria;
* Using data or media wiping, disposal, erasure or encryption utilities or devices
* Overwriting, erasing, destroying or discarding back up media;
* Re-assigning, re-imaging or disposing of systems, servers, devices or media;
* Running antivirus or other programs effecting wholesale metadata alteration;
* Releasing or purging online storage repositories;
* Using metadata stripper utilities;
* Disabling server or IM logging; and,
* Executing drive or file defragmentation or compression programs.

## Guard Against Deletion

You should anticipate that your employees, officers or others may seek to hide, destroy or alter ESI and act to prevent or guard against such actions. Especially where company machines have been used for Internet access or personal communications, you should anticipate that users may seek to delete or destroy information they regard as personal, confidential or embarrassing and, in so doing, may also delete or destroy potentially relevant ESI. This concern is not one unique to you or your employees and officers. It’s simply an event that occurs with such regularity in electronic discovery efforts that any custodian of ESI and their counsel are obliged to anticipate and guard against its occurrence.

## Preservation by Imaging

You should take affirmative steps to prevent anyone with access to your data, systems and archives from seeking to modify, destroy or hide electronic evidence on network or local hard drives (such as by deleting or overwriting files, using data shredding and overwriting applications, defragmentation, re-imaging or replacing drives, encryption, compression, steganography or the like). With respect to local hard drives, one way to protect existing data on local hard drives is by the creation and authentication of a forensically qualified image of all sectors of the drive. Such a forensically qualified duplicate may also be called a bitstream image or clone of the drive. Be advised that a conventional back up of a hard drive is not a forensically qualified image because it only captures active, unlocked data files and fails to preserve forensically significant data that may exist in such areas as unallocated space, slack space and the swap file.

With respect to the hard drives and storage devices of each of the persons named below and of each person acting in the capacity or holding the job title named below, as well as each other person likely to have information pertaining to the instant action on their computer hard drive(s), demand is made that you immediately obtain, authenticate and preserve forensically qualified images of the hard drives in any computer system (including portable and home computers) used by that person during the period described above, as well as recording and preserving the system time and date of each such computer.

Once obtained, each such forensically qualified image should be labeled to identify the date of acquisition, the person or entity acquiring the image and the system and medium from which it was obtained. Each such image should be preserved without alteration.

## Preservation in Native Form

You should anticipate that certain ESI, including but not limited to spreadsheets and databases, will be sought in the form or forms in which it is ordinarily maintained. Accordingly, you should preserve ESI in such native forms, and you should not select methods to preserve ESI that remove or degrade the ability to search your ESI by electronic means or make it difficult or burdensome to access or use the information efficiently in the litigation.

You should additionally refrain from actions that shift ESI from reasonably accessible media and forms to less accessible media and forms if the effect of such actions is to make such ESI not reasonably accessible

## Metadata

You should further anticipate the need to disclose and produce system and application metadata and act to preserve it. System metadata is information describing the history and characteristics of other ESI. This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file’s name, size, custodian, location and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content, draft language, commentary, collaboration and distribution data and dates of creation and printing. Be advised that metadata may be overwritten or corrupted by careless handling or improper steps to preserve ESI. For electronic mail, metadata includes all header routing data and Base 64 encoded attachment data, in addition to the To, From, Subject, Received Date, CC and BCC fields.

## Servers

With respect to servers like those used to manage electronic mail (e.g., Microsoft Exchange, Lotus Domino) or network storage (often called a user’s “network share”), the complete contents of each user’s network share and e-mail account should be preserved. There are several ways to preserve the contents of a server depending upon, e.g., its RAID configuration and whether it can be downed or must be online 24/7. If you question whether the preservation method you pursue is one that I will accept as sufficient, please email me to discuss it.

## Home Systems, Laptops, Online Accounts and Other ESI Venues

Though I expect that you will act swiftly to preserve data on office workstations and servers, you should also determine if any home or portable systems may contain potentially relevant data. To the extent that officers, board members or employees have sent or received potentially relevant e-mails or created or reviewed potentially relevant documents away from the office, you must preserve the contents of systems, devices and media used for these purposes (including not only potentially relevant data from portable and home computers, but also from portable thumb drives, CD-R disks and the user’s PDA, smart phone, voice mailbox or other forms of ESI storage.). Similarly, if employees, officers or board members used online or browser-based email accounts or services (such as AOL, Gmail, Yahoo Mail or the like) to send or receive potentially relevant messages and attachments, the contents of these account mailboxes (including Sent, Deleted and Archived Message folders) should be preserved.

## Ancillary Preservation

You must preserve documents and other tangible items that may be required to access, interpret or search potentially relevant ESI, including logs, control sheets, specifications, indices, naming protocols, file lists, network diagrams, flow charts, instruction sheets, data entry forms, abbreviation keys, user ID and password rosters or the like.
You must preserve any passwords, keys or other authenticators required to access encrypted files or run applications, along with the installation disks, user manuals and license keys for applications required to access the ESI.

You must preserve any cabling, drivers and hardware, other than a standard 3.5” floppy disk drive or standard CD or DVD optical disk drive, if needed to access or interpret media on which ESI is stored. This includes tape drives, bar code readers, Zip drives and other legacy or proprietary devices.

## Paper Preservation of ESI is Inadequate

As hard copies do not preserve electronic searchability or metadata, they are not an adequate substitute for, or cumulative of, electronically stored versions. If information exists in both electronic and paper forms, you should preserve both forms.

## Agents, Attorneys and Third Parties

Your preservation obligation extends beyond ESI in your care, possession or custody and includes ESI in the custody of others that is subject to your direction or control. Accordingly, you must notify any current or former agent, attorney, employee, custodian or contractor in possession of potentially relevant ESI to preserve such ESI to the full extent of your obligation to do so, and you must take reasonable steps to secure their compliance.

## System Sequestration or Forensically Sound Imaging

I suggest that, with respect to the named personnel above, removing their ESI systems, media and devices from service and properly sequestering and protecting them may be an appropriate and cost-effective preservation step.

In the event you deem it impractical to sequester systems, media and devices, I believe that the breadth of preservation required, coupled with the modest number of systems implicated, dictates that forensically sound imaging of the systems, media and devices is expedient and cost effective. As I anticipate the need for forensic examination of one or more of the systems and the presence of relevant evidence in forensically accessible areas of the drives, I demand that you employ forensically sound ESI preservation methods. Failure to use such methods poses a significant threat of spoliation and data loss.

By “forensically sound,” I mean duplication, for purposes of preservation, of all data stored on the evidence media while employing a proper chain of custody and using tools and methods that make no changes to the evidence and support authentication of the duplicate as a true and complete bit-for-bit image of the original. A forensically sound preservation method guards against changes to metadata evidence and preserves all parts of the electronic evidence, including in the so-called “unallocated clusters,” holding deleted files.

## Preservation Protocols

I would like to work with you to agree upon an acceptable protocol for forensically sound preservation and can supply a suitable protocol, if you will furnish an inventory of the systems and media to be preserved. Else, if you will promptly disclose the preservation protocol you intend to employ, perhaps I can identify any points of disagreement and resolve them. A successful and compliant ESI preservation effort requires expertise. If you do not currently have such expertise at your disposal, I urge you to engage the services of an expert in electronic evidence and computer forensics. Perhaps our respective experts can work cooperatively to secure a balance between evidence preservation and burden that’s fair to both sides and acceptable to the Court.

## Do Not Delay Preservation

I’m available to discuss reasonable preservation steps; however, you should not defer preservation steps pending such discussions if ESI may be lost or corrupted as a consequence of delay. Should your failure to preserve potentially relevant evidence result in the corruption, loss or delay in production of evidence to which I am entitled, such failure would constitute spoliation of evidence, and I will not hesitate to seek sanctions.

## Confirmation of Compliance

Please confirm by the date above that you have taken the steps outlined in this letter to preserve ESI and tangible documents potentially relevant to this action. If you have not undertaken the steps outlined above, or have taken other actions, please describe what you have done to preserve potentially relevant evidence.

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Fiat Fiendum FOIA template
Version 5.0
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# FOIA template structure

All content after the version number line above, except for the contact details at the very end, is part of my standard FOIA request template and identical between all of my FOIA requests. The provisions below are generally applicable to all FOIA / Privacy Act requests that I make.

There is one exception: the contact details below my signature at the very bottom (provided by MuckRock) are different for each request. Please use the distinct contact details matching each request, to ensure that your responses are correctly tracked.

The template provisions specify e.g. additional requests relating to my FOIA/PA requests themselves, form and format, timing, redaction & review, rolling updates, § 508 compliance, identity, fee waiver, my identity, and the like. They apply to this request, but are not specific to it.

If anything in the request-specific section above explicitly overrides anything in this template section, the request-specific section controls. If there is any ambiguity about such an override, please ask me for clarification.

The version number above is provided to make it easier for you to process my requests. Since all content (except contact info) below identical version number lines is identical between my requests, you need track only the request-specific portions (at the top) and the latest version of my general provisions.

Please read each new version carefully, as updates generally contain substantive changes.

## Template version updates

If you receive any FOIA request from me with a newer template version number than any pending prior FOIA requests from me, please replace the template portion of all prior requests with the updated version, treat the update as a clarification of and/or extension to the prior request, and process each updated request accordingly. Do not close the original request or change its request date. If you are permitted by law to refuse to honor such an update, and you choose to exercise that refusal, please process any differences between the new version and the prior version as a new FOIA request in its own right.

# Additional FOIA requests

In addition to the records specified in the request-specific section above, I also request:

B. all records relating to the fulfillment of this request, such as FOIA logs, documentation of searches, referral emails, etc.

This part of the request is to be processed only after you have completed processing all of the above parts. This part does not request that you create any new record; rather, it requests the records that you will have created in processing the above parts, and will therefore exist before you conduct the search for this part. See McGehee v. CIA, 697 F. 2d 1095, 1100-05 (D.C. Cir. 1983) (agency must use time-of-search cut-off date, not time-of-request).

C. all records relating to any complaint(s), FOIA request(s)/appeal(s), and/or Privacy Act request(s)/appeal(s) made by me. This includes, but is not limited to:
1. all records relating to the processing my previous requests, complaints, etc;
2. all records containing the terms my name, email address(es), and other contact or identifying information, listed below my signature; and
3. all records containing any of my complaint, request or appeal identifiers.

Parts (B) and (C) must be processed only after you have processed the items above that line, i.e. such that at the time of the search, the records described will have already been created at the time you conduct the search. Part (C) must be processed after part (B) is completed.

Parts (B) and (C) may overlap with similar prior requests. However, the cut-off date is, at earliest, the date that you complete search on all of the above items. If you wish to administratively merge this request with a prior similar request, I consent on condition that you extend the cut-off date for the prior request, and provide rolling updates. Otherwise, you must treat this as a new request.

For all responsive records, I also request:

D.
1. all parts of the record (i.e. no portion of a record with some responsive portion may be considered "non-responsive");
2. all versions of the record, whether or not currently in use;
3. all record metadata, such as dates on which they were drafted, passed, went into effect, withdrawn, or similar events; person(s) / office(s) responsible; authors; IDs; revision numbers; etc.;
4. a detailed index of all claims of exemption/privilege, regardless of whether the record is claimed to be exempt in whole or in part;
access to inspect the record directly, in its native electronic format; and
5. if any classification applies, mandatory declassification review (MDR) under E.O. 13526, and the result of the MDR, including any declassified records.

"All parts of the record" means that the "record" should be considered to be the most comprehensive record with any responsive portion. For instance:
a) if any portion of an email is responsive, the entire contents of all email thread(s) to which that email belongs is also responsive (including attachments);
b) if a record is part of a larger record, such as a responsive table that is in a chapter of a report, then the entire larger record (e.g. the full report) is responsive, together with any appendices, amendments, etc.;
c) if a record is part of a book, the entire book is responsive;
d) if a record is part of a database, all related database records are responsive;
etc.

"Related database records" has the technical meaning used in relational database management systems (such as SQL). It recursively includes all directly and indirectly related records (starting with all responsive records, include as responsive the full row of each, and recursively include as responsive all rows for which any responsive record has a foreign key or is referenced by a foreign key), together with the schema for all responsive records.

Items in part (D) should be prioritized at the same level as the record they apply to.

# Timing

For all requests above, the "cut-off date" is, at the earliest, the date that you conduct the search.

The priority order listed above is only for items that may take extra time to respond to, and must not be taken as blocking response to an otherwise lower priority item that could be released more quickly than a higher priority item that is pending time-intensive search or review.

# FOIA IA notice

Please note that this request is made after the enactment of Public Law No. 114-185, S. 337 (114th), the FOIA Improvement Act of 2016 (FOIA IA). The revised statute, as specified in the FOIA IA, applies to this request. FOIA IA § 6.

In particular, please note that:
1. you must provide electronic format documents, §§ 552(a)(2) (undesignated preceding text), 552(a)(2)(E) (undesignated following text), 552(a)(3)(B), and 552(a)(3)(C);
2. you may not specify an appeal duration less than 90 days, § 552(a)(6)(C)(A)(i)(III)(aa);
3. you may not withhold any record unless "the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b), or disclosure is prohibited by law", § 552(a)(8)(A)(i);
4. you must segregate and partially release records where possible, §§ 552(a)(8)(A)(ii) and 552(b) (undesignated matter following (b)(9)); and
5. you may not claim deliberative process exemption for records more than 25 years old, § 552(b)(5).

# "Record" defined

For the purposes of this request, except as otherwise specified, "record" means any agreement, appendix, application, assessment, attachment, checklist, circular, contract, correspondence (including but not limited to email), data management plan, documentation of search parameters, email, email attachment, form, guide, handbook, index of records, information consent agreement, information sharing agreement, instruction, interpretation, kit, management instruction, manual, memorandum, memorandum of understanding, notice, notification, opinion, order, plan, policy, policy statement, processing note, publication, recording, referral, report, request certification form, request detail report, response, rule, script, standard operating procedure, submission, talking point, training document, video, or related record described, regardless of publication status.

# Anti-duplication exclusion

This request specifically excludes providing me with new copies of any records which have been already provided to me or published online for free (e.g. on the agency's online "reading room"), in full or identically to the form that would be provided to me under this request (i.e. with exactly the same format, redactions, and claimed exemptions).

This is only an exclusion on providing records under this request that are identical to those already provided to me or available online, and only if I am or have already been provided a link to the online version (if "available online").

This exclusion is only intended to limit unnecessary duplication or provision, not to limit what records are responsive to this request, nor to permit failure to disclose the location of a responsive record available online. If this exclusion would in any way increase the cost or duration to respond to this request, it is to be ignored to the extent it does so.

This request is to be treated as separate from all others that I have filed.

# Forwarding; multi-agency / multi-component records

Please forward this request to the FOIA office of every agency component and subcomponent that may have responsive records for independent processing, with a copy to me.

This request includes any records held jointly by your agency in conjunction with any other agency and/or department, in interagency and/or interdepartmental systems of records, or by other agencies or third parties (including contractors) acting pursuant to any agreement with your agency.

# Minimal redaction

Please note that the FOIA requires you to service the maximum extent of my request that can be done via e.g. partial redaction of exempt material. If you believe some portions of a record to be exempt because it contains Sensitive Security Information (SSI, 49 CFR 15 & 1520) or classified information (18 USC 798), please provide a version of the record redacted to the minimum extent necessary to remove exempt information (e.g. per 49 CFR 1520.15), along with adequate information to describe the reason for each specific exemption.

## Redaction of repeatedly occurring content

When redacting any content that appears more than once in the full set of responsive records, please assign a replacement identifier for each, so that your redaction does not obfuscate the commonality.

For example, suppose that responsive records include the names Alice, Bob, Charlie, and Diego, and you determine that each of those names are redactable (e.g. under (b)(7)(C)). Rather than redacting each with only the text "(b)(7)(C)", replace each instance of "Alice" with "(b)(7)(C) - Person 1", each instance of "Bob" with "(b)(7)(C) - Person 2", etc. This e.g. withholds Alice's identity while not withholding the fact of commonality between occurrences.

Please use reasonably descriptive identifiers. For instance, if Elizabeth's name is not redacted but her personal cellphone number is, and that cellphone number appears e.g. both in her email signature and elsewhere by itself, it should in both cases be redacted with the same descriptive identifier, such as "[Alice's cell #]". For documents, this can be specified in the margins. If space or file format does not permit you to do so, then please use a short code (e.g. "[#52]", and provide a table matching codes to full identifiers in your response letter.

If you make any such redactions, please keep but do not provide a table matching codes/identifiers to the redacted content, for use in case your redaction is examined or overturned on appeal or in litigation.

This is a form and format request pertaining to your process of redaction. Because it only applies in situations when you have already exercised the voluntary decision to alter the records from the original form requested, you have necessarily waived any objection to this section "creating a new record", since your act of redaction itself already "makes a new record" in that limited sense. This is only about how you do a redaction you have already decided to make.

This provision limits the scope of your redaction to the minimum possible extent, so that even if you decide to withhold some particular piece of content, you do not also withhold the fact of its being the same as the same content appearing elsewhere. That fact is itself metadata that is explicitly requested as part of this request.

If you decide that the mere fact of two pieces of content being the same is itself withholdable, then please redact it using an identifier that encodes only the reason, and provide a table matching those reason-only identifiers to justifications in your response letter.

# Estimates and rolling updates

In order to help tailor my request, please provide an upfront estimate of the time and cost it will take to complete this request, broken down any significant factors that would affect cost to service, number of records in each category, and your estimate of how many records in the category are likely to be exempt.

Please provide me with incremental updates, with updated estimates for fulfillment of the remainder, rather than having the entirety of the request be blocked until fully completed.

# No new records; electronic & original format

This request does not ask you to create new records.

If you determine that a response would require creating a new record that you do not want to create, please first contact me by email with an explanation of what records you have that would most closely match the information requested and might be acceptable substitutes, so that we can reasonably tailor the request.

In particular, I specifically request that you do not create new documents in response to this request that are modifications of a digital record, such as page-view images, print views, scans, or the like. No such creation or substitution is authorized by FOIA or the Privacy Act.

However, if the same or similar records are held in both electronic and paper formats, this request includes both the paper and electronic versions. The paper version and the digital version are distinct records, and each may contain distinct information such as handwritten or other markings on the paper copy and embedded metadata in the electronic version.

I specifically request both the original, electronic format record, and (if it contains any additional markings) the paper record.

To the extent that the native electronic format is proprietary or otherwise not in format accessible by widely available, open source software, I also request
1. an export of the proprietary format into a standard, open format, as described below, and
2. all proprietary software necessary to use and understand the original, proprietary format records.

# Rehab Act § 508 compliance

In accordance with 5 USC 552(a)(3)(B & C) (E-FOIA), Rehabilitation Act § 508, and FOIA IA, I demand that you respond using original, native format, electronic, machine-processable, accessible, open, and well structured records to the maximum extent possible — for both the content of your response, and any communications about the request (such as response letters).

This means, e.g.:
1. native, original format records rather than PDFs or other conversions (see note above re providing both native electronic records and scans of paper records, if both exist);
2. individual files per distinct source record (e.g. one .msg file per email), named clearly using the record's identifier, title, and date, rather than a single file containing multiple concatenated records;
3. records compliant with the Rehabilitation Act § 508, 36 CFR Part 1194, and I​SO 14289­-1;
4. fully digital text records rather than scans, rasterizations, or OCR;
5. complete electronic records, as held on any computer (including phones, servers, backup servers, mail servers, workstations, etc.), including all headers and attachments, fully expanded e-mail addresses, full addresses for address "aliases", full lists for "distribution list" aliases, all embedded and external metadata, complete bitwise digital copies of the original file, all file headers, and all other file content;
6. blackout rather than whiteout redactions, with every redaction marked with all exemption(s) claimed for that redaction;
7. digital redactions rather than black marker or rasterization;
8. lists and structured data as machine-processable spreadsheets (e.g. CSV, SQL, XSL) rather than word documents (e.g. DOC, PDF, TXT, RTF) or partial printouts (e.g. PDF),
9. open format records (e.g. PDF, AVI, MPG) rather than proprietary format records (e.g. WordPerfect, Microsoft Advanced Systems Format (ASF)) (note above re providing both original, proprietary format records and open format records);
10. scans rather than paper copies;
11. digital audio/video files rather than physical tapes;
12. upload to your Electronic Reading Room (or other publicly accessible server) rather than personal transfer (for all items other than the item requesting records related to me or my requests);
13. email or (S)FTP file transfer rather than CD;
14. email correspondence rather than physical mail; etc.

# Compression, passwords, and uploading large files

Multiple files may be sent in a combined, compressed form using standard ZIP, TAR, GZIP, BZIP2, and/or RAR formats, or sent as separate files, at your discretion.

Do not use any password on any files, including ZIP files etc., unless a password was present in the original, native format (in which case, leave it unaltered, and send me the password).

If there are any files you prefer not to transfer by email (e.g. if they are >10MB), please upload them to me via the link listed below my signature. Doing so is secure, completely free to you, and I will be notified of the upload.

# No physical "duplication"; inspection & direct access

Please note that this request does not request that you physically "duplicate" records, as I do not want you to create any paper or other physical copy for me — I only want electronic versions (or scans, for records that are not fully available in electronic form). As such, I expect there to be no duplication related costs.

Furthermore, I specifically request access for inspection of the records, including direct electronic access, in native format, to any electronic records.

# Request tracking numbers and estimated completion date

Upon receipt, and in every followup response, please state your tracking number(s) for this request, as well as your specific estimated completion date. 5 USC 552(a)(7).

# Communication about this request and method for responding

If you have any questions or updates about this request, please contact me by email, using only the MuckRock email address from which this request was sent. Please do not send responses to my personal or organizational email addresses unless I specifically request you to do so.

Please ensure that all of your responses comply with § 508 of the Rehabilitation Act, 36 CFR Part 1194, and I​SO 14289­-1.

In particular, please make all correspondence pursuant to this request — including notification and responsive records — by email, with native electronic format records, as specified in the request. I do not authorize you to send anything to me by physical mail unless I specifically state otherwise.

Do not respond using ZixCorp "Secure Mail" or any other method that "expires" records from being available. Use only actual email and direct attachments, or upload using the link below, unless I explicitly request otherwise.

# "Reasonable description" and tailoring

Please note that a request need only be "reasonably described" in the sense that you understand what is requested and where you can find it. A request is not improper merely because of the amount of responsive records. I will not agree to a limitation premised on this request asking for voluminous records. However, I may agree to a limitation premised on the difficulty of finding particular records or categories thereof, the quality of records available, paper vs electronic format, or similar issues.

If you believe that any of the requested items are not reasonably described, that they would be overly burdensome to fulfill, or that you need any further information, please be specific about what you consider vague.

Please include in any response about "reasonably described", or any request for narrowing, specific questions I can answer that would clarify matters for you; specific descriptions of what parts of the request more or less burdensome (and why) that could serve as the basis for negotiating a narrower request; and any indexes, finding guides, record categories, record storage practices, likely places that responsive records may be located, or similar information that would allow me to understand your concerns and better tailor the request.

# No fees agreed to; non-commercial status; journalistic & public interest waiver

I am not currently willing to pay for servicing this request. I may be willing to pay if it is necessary; please send a detailed explanation of the costs and their statutory justification, and service the maximum extent of the request that can be done for free in the meantime.

This request is a qualified request for journalistic, public interest purposes. As such, I request fully waived fees, including both public interest fee waiver and journalistic fee waiver.

1. Fiat Fiendum, Inc. (FF) is a 501(c)(3) nonprofit organization, organized for charitable, educational, scientific, and/or literary purposes.

This request is a part of FF's bona fide educational and scientific purpose activities, which are public interest purposes as a matter of law.

2. FF's actions in matters such as this request are non-commercial. My personal interest in the records is also non-commercial.

3. Both Fiat Fiendum as an organization, and I as an individual, are representatives of the news media and entitled to waiver of all search fees.

4. I intend and am able to host and publish all received records online to the general public at no charge, as well to publish highlights, analyses, summaries, commentaries, and other creative, original journalistic and scientific work about responsive records through multiple online publications, as part of Fiat Fiendum's work.

5. The records requested are of significant public interest, entitled to waiver of all duplication fees, since
a. they are requested for 501(c)(3) public interest purposes;
b. as above, I both am able and intend to disseminate the files widely;
c. they would contribute greatly to the public understanding of the operations & activities of your agency, in that they are records that directly describe agency operations & activities, as well as the issues and matters described at the top of this letter;
d. they are not currently readily available; and
e. they are likely to be requested by others.

6. As mentioned above, I am explicitly not asking for any physical duplication, but rather direct server-to-server file transfer or email (or posting on your website). FOIA authorizes "duplication" fees strictly limited to your agency's actual costs, and mandates that your agency use the cheapest available requested methods. I consider the actual costs for server-to-server file transfer to be reasonably estimated by, e.g., Amazon S3's pricing (https://aws.amazon.com/s3/pricing/).

7. I request that, pending fee waiver determination or appeal, you proceed with this request as if it were in the "other non-commercial requester" category.

# Requester

This request is made on behalf of both myself, Sai (in personal capacity) and Fiat Fiendum, Inc. (in official capacity).

“Sai” is my full legal name.

Please note that I am partially blind. I use screen readers (such as VoiceOver and TalkBack). I also need to process documents using computer code (which requires machine-readable data, including metadata). These facts must be considered as part of the basis for, and right to, the form and format requests detailed above.

Sincerely,
Sai
President, Fiat Fiendum, Inc.
Fiat Fiendum is a 501(c)(3) tax-exempt corporation devoted to public interest journalism, government transparency and accountability, individuals' civil rights, and related issues.

Upload link and physical mail address are below. (Again, do not physically mail responsive records without my explicit request; send all responses electronically.)

I appeal.

1. Your response letter incorrectly portrays the list of *background* material as if it were the list of *requested* material.

The two are distinct, and explicitly labeled as such.

2. Your response denied expedited processing as to the alleged 2011/2012 Quiet Skies PIA whose existence David Pekoske swore to Congress. This does in fact affect:

a) the loss of substantial due process rights

As discussed in the sanctions motion, Pekoske's perjury, if credited by the courts, would deprive me of standing under your litigations counsel's theory of 49 USC 46110(a). Furthermore, the perjury falsifies the administrative record - of which the Congressional testimony is a key part.

I have due process rights to not have my standing undermined by false testimony, and to not have false testimony in the administrative record. Tampering with either is not merely a violation of my Constitutional rights, but felony obstruction of justice.

Misprision of felony is also a felony. If you know that Pekoske lied to Congress, and you help to cover it up (e.g. by preventing or stalling disclosure of evidence that would reveal it), you are committing a felony.

b) urgency to inform the public about federal government activity

Both houses of Congress believed that Quiet Skies was sufficiently important to demand a hearing within a month of the Boston Globe's disclosure. Are you claiming that they were wrong?

Furthermore, you issued a PIA about Quiet Skies one week before, and obviously in preparation for, your response to the First Circuit's order commanding you to disclose the orders at issue in my case. This is clear evidence of improper motive, i.e. you created the Quiet Skies PIA as a direct effort to affect my litigation rather than for unrelated, legitimate reasons. To claim that this was mere coincidence is facially absurd.

c) widespread media interest in which there exist possible questions about the government's integrity

I linked you to multiple news stories about Quiet Skies, referencing the original coverage for simplicity.

If you bother to open Google and search for '"Quiet Skies" TSA', you will see widespread, international secondary news coverage: <https://www.google.com/search?tbm=nws&q="quiet+skies"+tsa>, including CNN, CBS News, NBC News, Vox, USA Today, Rasmussen, Washington Examiner, NPR, ABC News, The Telegraph, Forbes, etc. etc.

There is also the recent OIG report, finding that the program is a waste of money, OIG-19-17, constitutional criticism from major civil rights groups such as the ACLU and by members of Congress, and reports from FAMs that they were directed to conduct racial profiling.

I believe this is very clear evidence of "widespread media interest".

Furthermore, there are the hearings in Congress in which your top official was questioned under oath, made specific allegations that I highlighted, and evidence that he lied (e.g. about the existence of a 2011/2012 Quiet Skies PIA, when in fact the only Quiet Skies PIA was released in 2019).

Repeated felony perjury by the head of an agency is a rather substantial "question about the government's integrity".

The expedited processing was requested specifically, and only, for a very small number of documents, which should be readily available if they exist, that directly go to the question of whether or not your top official, David Pekoske, committed perjury before both houses of Congress.

They are administrative record of the program. They should be covered entirely in likely only a couple documents, such as a PIA and SORN - and for the PIA, only subsections the document were requested.

This request is very narrowly tailored to confirm or deny Pekoske's perjury.

Namely, this part of the request is A.1.a. Since you misquote my request, I quote it again here:

"A. Quiet Skies documents

1. Pekoske's testimony

a. the documents referenced by Pekoske in the statements:

i. "On the Quiet Skies program. This program is not a new program, but it is
an intelligence-driven, risked-based rules program that’s been in place
since 2011. Privacy Impact Statements have been filed and updated..."
ii. "Sir, the Quiet Skies program is not a new program. It’s been in
existence since about 2011, 2012."
iii. "Those records are retained for 2 years."
iv. "This program is part of a Privacy Impact Assessment that’s been
published on the DHS website for years, and we do use the Travel Vetting
System that Customs and Border Protection employs."
v. "importantly it is not a new program either. Quiet Skies has been around
since 2012. The Privacy Impact Statements have been published and you know
that information is out there available to the public to see.

In particular, and with top priority for expedited treatment, this means:
* the documents, dated 2011 or 2012, state the initiation of the Quiet Skies
program
* the Privacy Impact [Assessments] that cover the Quiet Skies program, and
were published prior to DHS/TSA PIA-018(i) (2019), i.e. "years" ago

For the PIA portion of this sub-request *only*, the "all parts of the record"
provision below is expressly countermanded, and the holding of AILA v EOIR,
830 F.3d 667 (D.C. Cir. 2016) is expressly waived.

For the PIA portion of this subrequest, rather than providing the entire
responsive PIA, you are to provide *only* the portion(s) of the PIA(s) which
Pekoske referenced in his testimony.

If there is no responsive record to either part of this subrequest - i.e. if
Pekoske committed perjury - you are to provide an explicit statement saying
so."

Please let me know whether you
(a) dispute that Quiet Skies is the subject of "widespread media interest" (and if yes, why);
(b) dispute that David Pekoske committing felony perjury before Congress would raise "question about the government's integrity" (and if yes, why); or
(c) agree to expedite this part of the request.

Sincerely,
Sai

1. A(1)(a), A(1)(b)

> please note that the FOIA does not require agencies to create new records, conduct research,
or analyze data when responding to requests, and this request necessarily requires identifying a record and
then consulting an individual to isolate a portion of it. Thus, TSA will not be dividing any responsive
records to provide you with specific “portions.”
> Regarding Item A1(b), this portion of your request is overly broad and does not reasonably describe the
records sought so as to allow agency personnel to locate them with a reasonable amount of effort. Simply
stating, “the evidence underlying Pekoske’s statements” does not sufficiently describe records to enable
TSA to conduct a reasonable search.

I didn't ask you to create new records, conduct research, or analyze data. I asked you to strictly limit the records you provide to only the portions that are responsive.

You are affirmatively *required* to identify the record and consult with Pekoske about the location of responsive records. How do you claim that as a *defense*?

See PEER v EPA, 314 F. Supp. 3d 68 (D.D.C. 2018), where the request was for records "relied upon by Administrator Pruitt in making [specified, public] statements and any EPA documents that support the conclusions". The court noted "an axiom of administrative law that an agency's explanation of the basis for its decision must include `a rational connection between the facts found and the choice made", and the "responsibility of the agency to explain the rationale and factual basis for its decision" , and holding that "any agency records compiled, prepared, provided, used, or reviewed by Administrator Pruitt in connection with his public statements [...], must be searched for and disclosed unless exempt". It also held that the request for documents supporting the conclusions "fully satisfies the statutory requirement of "reasonably describ[ing]" the records sought".

This request is exactly analogous: I asked for both
a) the actual records relied on by Pekoske in making his statements during the two hearings, *and*
b) any agency records that support his claims.

This is a one-to-one match for the two-part request at issue in PEER v. EPA.

Withdraw your objection and admit error. You cannot prevail on this. If you attempt to defend it, I will sue for permanent injunction against the agency's policy and practice deliberately contrary to binding law.

2. A(1)(d)

> With respect to the remaining items under (A)(1)(d), the request is overly broad and does not reasonably describe the records sought so as to allow agency personnel to locate them with a reasonable amount of effort (e.g., “all related correspondence” and “all records”). If you would like TSA to conduct a search, please narrow the scope of your request by providing specific details about the records you are seeking, to include the specific dates, type of correspondence, subject matter, and individual involved in the correspondence and records.

Your objection is not reasonably described.

Are you claiming that you have absolutely no idea what correspondence is related to Congressional inquiries?

Are you claiming that the Congressional requesters' inquiries are themselves so ambiguous that you do not know what records would answer the questions they posed?

If you in fact to understand these, but are claiming that the responsive records are so widely located that finding them would require an unreasonable burden, please explain what responsive records are likely to be located where, so that I can guide you as to what portions you should search.

3. > If we have not heard from you by November 4, 2019, we will administratively close this part of your request.
> If we have not heard from you by November 4, 2019, we will administratively close this part of your request. (2nd instance)
> If we have not heard from you by November 4, 2019, we will administratively close this part of your request. (3rd instance)
> If we have not heard from you by November 4, 2019, we will administratively close this part of your request. (4th instance)
> Please provide additional information, as noted above, to clarify this portion of the request as soon as possible and no later than 30 working days from the date of this letter. If we have not heard from you by November 4, 2019 we will administratively close this part of your request. (5th instance)

I petition for rulemaking.

This "deadline" is completely unsupported by the text of 5 USC 552. You have no authority to make it.

You also have no authority to constructively deny any part of my request, on any basis (including NRD), except by a 552(a)(6)(A) response. "Administrative closure" is not a thing.

You also have no authority to refuse to make any attempt whatsoever to locate responsive records. You are required to make at least a reasonable effort - and to discuss with me what that reasonable effort will look like. You have given no proposal whatsoever as to what search you propose to make that would be reasonably calculated to find responsive records. That is your job, not mine. I can agree to a limit only once you explain to me where responsive records are likely located and why some of them may be unduly burdensome to find. You haven't done so.

You also have no authority to require any response to an adverse decision in less than 90 days. The "30 working days" demand has no basis in law whatsoever.

I therefore petition for rulemaking, that the TSA amend its FOIA regulations to explicitly prohibit each of the above three ultra vires actions, and mandate their opposite.

4. A(1)(d)(iii, iv)

> TSA is not the proper component to respond to these sub-items; therefore TSA is referring this portion of your request to DHS for direct reply to you.

a) Please send me a copy of your referral and their response to date.

b) You are incorrect in part. TSA is a component of the DHS, and therefore has at least part of the requested records. You are required to locate the portion of the requested records that TSA can produce, e.g. that is on TSA's email servers.

5. A(2)

> Although you have provided a timeframe, a list of offices, and the phrases “Quiet Skies” and “Silent Partner,” your request for “All emails” within those parameters is not susceptible to a reasonable search. As framed, your request would require hundreds of employees (including former employees, if available) in the named offices to independently conduct a search of their email dating back to 2010, and thus would not constitute a reasonable search.

That is simply false, and in fact I specifically forbid you to farm out this request to employees to search their own emails. They have a conflict of interest; email searches should be conducted by neutral IT personnel.

The only reasonable search method is to conduct the search directly on the agency's email servers, e-discovery system, or similar data retention / auditing system.

Your Chief FOIA Officer personally confirmed to me that the TSA CIO is in fact capable of doing exactly this, and also that the FOIA office as a pattern and practice of refusing to request it. That pattern & practice is unlawful.

I refuse to limit the search unless you explain why the CIO cannot conduct the kind of search I described, or why some modification of it would be necessary to make that kind of search feasible in reasonable amount of time.

6. A(4)

> Regarding Item A(4), this portion of your request is overly broad and does not reasonably describe the records sought so as to allow agency personnel to locate them with a reasonable amount of effort. “All training materials related to Quiet skies or Silent Partner” does not provide a sufficient description to facilitate a reasonable search.

Yes it does.

Do you seriously claim that you have absolutely no idea what material is used to train people about Quiet Skies or Silent Partner? E.g. that OLE-FAMS has no idea how they train their own staff to conduct these programs; that HQ personnel have no idea how they are trained about the use of either program; that OSO has no idea how they are trained about either, such as how individuals are added to the "known or suspected terrorists" lists or selected for surveillance under QS/SP; etc?

In fact, your response implicitly acknowledges that you do. It would be useless to narrow the scope to "the specific type of training, the specific type of employee that the training is for, and a specific timeframe, or the particular issues that are addressed by the training materials" unless you know what the training materials are to begin with.

Again, if you want me to limit a search, you are going to have to explain to me where the records are stored, and why it would be so burdensome to find all of them given that storage system. Then I may be willing to limit the request.

As is, you're simply giving a bald refusal to even attempt any reasonable search. That is, again, plainly illegal.

7. A(5)
> “All correspondence related to the identified FOIA requests above” does not provide sufficient detail to facilitate a reasonable search. Please specify the type of correspondence you are seeking, including a specific timeframe, clearly defined subject, and the individual(s) that the correspondence was to or from.

I agree to limit this portion of the request, at first pass, to correspondence that involved the FOIA office (e.g. to/from/cc/bcc); and on second pass, records that are referenced in records responsive to that first pass search.

8. A(5), B

> Regarding Item B, all records relating to the fulfillment of this request, such as FOIA logs, documentation of searches, referral, emails, etc.,” per the FOIA, an agency is only required to search for responsive records in their possession and control at the time a search is conducted.

As to the application of A(5), you cannot contest that you currently have such records for all of the requests I listed.

As to the application to this request itself, you cannot contest that you *will* have such records if, as instructed, you conduct this search after you finish your search for part A.

9. C

> Regarding “Item C and all sub-items thereunder, all records relating to any complaint(s), FOIA request(s)/appeal(s), and/or Privacy Act request(s)/appeal(s) made by you.” You have made this request before, and it is being processed under TSA FOIA 2015-TSFO-00336. To the extent you are requesting additional records, please identify dates, locations, case numbers, or other specific criteria that will enable TSA to conduct a search.

As you surely know, I have already won in court against you on this argument.

The new request covers everything in the prior ones, *plus* all records for the same search terms that may have been created since then (i.e. it extends the minimum cut-off date), *plus* all records related to more recent FOIA/PA requests etc (i.e. it extends the search list).

I decline to provide you with a list of my requests etc; you are literally right now interacting with a record system where you can look up the entirety of them, by doing a search for both my name and the name of my organization. Do so.

I note that the request you mentioned was filed in *2015*, with a demand for rolling production, and most of it can be easily accomplished by searching records in the control of your own office. Nevertheless, you have yet to produce even a single record. Why is that, exactly?

10. D(3)

> Regarding “Item D, sub-item 3, and any other portions of your request for “All record metadata” these portions of your request are overly broad and do not reasonably describe the records sought as to allow agency personnel to locate them with a reasonable amount of effort. The request as outlined would encompass millions of records and likely terabytes of data.

a) No, it would not. It requires simply the data inherent in every record that is already responsive. Unless you somehow destroy it from the original file (which is what I requested in the first place), e.g. by using FOIAXpress, there is literally zero additional burden to the production of metadata.

In my professional opinion as a programmer with 3 decades of experience, including experience at managing multi-million-record databases and multi-terabyte data sets, there is no chance in hell that the response to D(3) would require terabytes of data. It would not even require 1 GB. Metadata is tiny.

b) Even if it were to include millions of records and terabytes of data, I am perfectly fine with that, and demand you produce them anyway.

DOJ has held against your position for *decades*.

January 1, 1983. FOIA Update. Vol. IV, No. 3
<https://www.justice.gov/oip/blog/foia-update-foia-counselor-questions-answers-21>

"""
"Can an agency deny a FOIA request which requires an extremely burdensome search, and/or encompasses an enormous volume of records, on the ground that the records are not "reasonably described?"

No. The sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not "reasonably describe" records within the meaning of 5 U.S.C. § 552(a)(3)(A). That provision in the FOIA was intended to ensure that a FOIA request description "be sufficient [to enable] a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." H.R. Rep. No. 93-876, 93d Cong., 2d Sess. 6 (1974). See also S. Rep. No. 93-854, 93d Cong., 2d Sess. 10 (1974) ("[T]he identification standard should not be used to obstruct public access to agency records."); Bristol-Meyers Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir.), cert. denied, 400 U.S. 824 (1970).
"""

You make no claim whatsoever that you don't know what records I'm describing, nor that it could not readily be obtained by an IT staffer with a shell script.

11. Format

> Furthermore, agencies are required to provide a responsive record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. This means that FOIA requests must be processed in a requested format if the capability exists to respond to the request in that format. The TSA FOIA office uses a DHS web-based application to manage the FOIA process that includes the processing and production of responsive records. This system processes all records in a PDF format. Therefore, the records are only reproducible by TSA in a PDF format. As a result of the records being converted to a PDF, the file and file system data or metadata from the raw format of the records processed are not available. Thus, TSA will be unable to produce records responsive to this portion of your request in the manner you seek, even if it were reasonably described.

You are wrong as a matter of law.

See opposition to TSA MSJ, and cross-MSJ, in Sai v TSA, No. 14-cv-403 (D. D.C. filed Sept. 5, 2019).

However, considering that this issue is currently before the court, I am willing to give you an extension to comply with this part of my request until the court issues its opinion & order on TSA's 2nd (i.e. pending) MSJ.

If you agree to take this offer of extension, please say so explicitly.

12. D(4)

> Also, with respect to “Item D, sub-item 4, “A detailed index of all claims of exemption,” you have requested that TSA provide a Vaughn Index. With regard to the timing of the creation of a Vaughn Index, it is well settled that a requester is not entitled to receive one during the administrative process. Accordingly, I am denying this portion of your request

That is incorrect. I did not request a Vaughn index; I requested an index of all exemptions.

This is
a) a form & format request as to your redactions, for which you already waive "creating a new record" objections because you will have both modified the original record (to redact it),
b) a form & format request as to your 552(a)(6)(A)(i)(I) response, which requires you to enumerate the "reasons" for your determinations (e.g. of exemption), i.e. that you to give a full list of the exemption determinations, and the reasons therefor about each, at the same level of detail that you will already have recorded or decided as part of your routine FOIA processing - not in the *additional* detail required for a Vaughn declaration, and
c) a 508 request, since finding exemptions in a long list of responsive documents is extremely difficult for me, and I therefore require that you provide an index thereof (by reference to e.g. the file name & page number(s) of the produced records) so that I can readily understand and be able to find, in one place, exactly what records you have redacted and why.

Sincerely,
Sai
Fiat Fiendum