RAPS RFI responses (resubmission)

Shawn Musgrave filed this request with the Department of Homeland Security, Science and Technology Directorate of the United States of America.
Tracking #

2014-STFO-043; Appeal 2015-HQAP-00011



From: Shawn Musgrave

To Whom It May Concern:

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

-All white papers sent in response to the RAPS RFI (DHS 13-01 “Robotic Aircraft for Public Safety").

-All other applications, statements of interest or other communications from manufacturers interested in submitting their equipment for evaluation as part of the RAPS program

This is a request for the same documents as requested in 2014-STFO-043. By the attached letter of May 27, 2014, S&T FOIA staff indicated that no responsive documents could be found. This is frankly impossible, given that Borders and Maritime Security Division (BMD) in S&T is the overseeing entity within S&T responsible for RAPS.

For reference, see the RAPS RFI (attached), as posted on the Federal Business Opportunities website (https://www.fbo.gov/index?s=opportunity&mode=form&id=166efd9e4bc8250834424288d7f33067&tab=core&_cview=1).

In light of the above, I request a good faith search for responsive documents given S&T's clear involvement.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.


Shawn Musgrave


Dear Mr. Musgrave

Thank you for your Freedom of Information Act (FOIA) inquiry, please review the attached letter.


FOIA Office
Science and Technology Directorate
U.S. Department of Homeland Security
(o) (202) 254-6342
(f) (202) 254-6739

From: Shawn Musgrave

Associate General Counsel (General Law)
Mail Stop 0655
U.S. Department of Homeland Security
Washington, DC 20528

November 10, 2014

To Whom It May Concern:

This is an appeal of the rejection in full of FOIA 2014-STFO-043, in which I requested:

-All white papers sent in response to the RAPS RFI (DHS 13-01 “Robotic Aircraft for Public Safety").

-All other applications, statements of interest or other communications from manufacturers interested in submitting their equipment for evaluation as part of the RAPS program

For reference, Robotic Aircraft for Public Safety, Solicitation DHS13-01, was posted on FedBizOpps.com on September 24, 2012: https://www.fbo.gov/index?s=opportunity&mode=form&id=166efd9e4bc8250834424288d7f33067

In the attached rejection letter, the U.S. Department of Homeland Security (DHS), Science and Technology Directorate (S&T) FOIA staff determined that documents could not be found which were responsive to the second part of my FOIA request for communications with interested manufacturers. I appeal the adequacy of the search for this portion of the request. The latest version of the RFI (available at https://www.fbo.gov/utils/view?id=18d771104b5c6fa09585e7583cfa6b5e) indicates that "Questions and requests for additional information should be sent to DHS at RAPS_RFI@hq.dhs.gov," and also indicates that the Primary Point of Contact for this solicitation was Amalia E. Rodezno, Contract Specialist
(email address: amalia.rodezno@hq.dhs.gov).

A subsequent update dated February 12, 2013 (available at https://www.fbo.gov/utils/view?id=28073400fd305015c6d132d6273f628e) indicates that "Vendor response to our Request for Information (RFI), Number: DHS 13-01, on small unmanned aircraft systems (SUAS) was excellent and included the submission of over 70 white papers."

Given the considerable manufacturer response to this solicitation, it is reasonable to suppose that manufacturers sent inquiries beside formal submission of white papers. I therefore request that this portion of the FOIA be remanded back to DHS S&T for a good faith search for documents responsive to the request — the foremost location to start would reasonably be the indicated email addresses, but the search ought to include searches of communications with all points of contact for this solicitation, as well.

I also appeal the rejection in its entirety of the first portion of my request for white papers submitted to DHS S&T in response to this solicitation.

DHS S&T FOIA staff foremost rely on exemption 4 to justify withholding the indicated information. This does not justify withholding the documents in their entirety — protected commercial information can be redacted from responsive documents, as is required under the FOIA. In fact, within the solicitation itself, manufacturers are directed:

"To aid the Government, please segregate proprietary information [....] Please limit your White Paper responses to this RFI to Sensitive Security Information (SSI), company proprietary or unrestricted information, and please mark submissions appropriately. SSI submissions can be submitted as normal by password protecting the document, and then sending the password separately to the contract specialist."

The segregation and marking of proprietary or otherwise protected information should simplify the process of redacting information protected under exemption 4.

Furthermore, manufacturers are advised in the RFI and related documentation that "Any information provided to the Government is strictly voluntary," becomes federal government property, and may be used as the government sees fit: "Please be advised that all submissions become Government property and will not be returned. [....] Responses to the RFI may be used to develop Government documentation."

In light of such warnings to manufacturers and the absence of any commitment to withhold particular information submitted, it is dubious that exemption 4 applies to any information provided in response to the RFI.

The next exemption invoked is exemption 6, which pertains to personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy. It is fundamentally unclear how many information or documents requested in this FOIA request includes such personnel files or similar documents. In any case, any such personally identifiable information could be redacted from the documents. This exemption does not justify rejecting the request in its entirety.

Similarly, the invocation of exemption 7(C), which protects records or information compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy, is baffling. As DHS S&T FOIA staff note in the rejection letter, exemption 7(C) typically applies to "suspects, witnesses, or investigators" as a means of shielding them from "being unwarrantably associated with alleged criminal activity." There is no such alleged criminal activity pertinent to this FOIA request, which concerns purely administrative matters that have criminal investigative aspect. This exemption does not justify the withholding of requested documents in their entirety, particularly given the total lack of explanation for this exemption's relevance to the present request.

Finally, exemption 7(E) likewise does not justify withholding the documents in their entirety. The present request concerns administrative review of equipment. The solicitation itself notes that unmanned aerial systems (UAS) are used for a range of purposes which are not limited to law enforcement. As such, exemption 7(E) does not justify wholesale withholding of all the documents. Information covered under 7(E) can be redacted in part.

Furthermore, it is untrue that the "techniques and procedures at issue are not well known to the public." Presumably, many of the more than 70 manufacturers that submitted white papers in response to this solicitation advertise their UAS equipment publicly. Many of the agencies that currently use UAS do so publicly. And when the FBI attempted to use exemption 7(E) to shield its UAS deployment from the public, a district judge ordered the Bureau to release thousands of pages "given the intense interest in the public's concern about
the FBI's use of drones to conduct domestic surveillance." (For reference, see http://www.citizensforethics.org/page/-/PDFs/Legal/FOIA/062613_FBI_DOJ_Expedition_Court_order_Domestic_Drones_on_2-4-14.pdf.) The judge determined that 7(E) was not sufficient to withhold all documents in their entirety even for a law enforcement agency such as the FBI. The applicability of the exemption to DHS S&T is much weaker, and nowhere near comprehensive enough to justify withholding documents related to the present RFI.

In summary, DHS S&T FOIA staff's justifications are insufficient to reject this request in its entirety. I respectfully insist that the present FOIA be remanded for a good faith search for responsive records, as well as for release of responsive documents in accordance with the agency's obligations under the Freedom of Information Act.


Shawn Musgrave

From: Department of Homeland Security, Science and Technology Directorate

A letter stating that the request appeal has been received and is being processed.

From: Meus, Lauren M CIV

Mr. Musgrave:

Please find attached the FOIA Appeal Decision issued by Judge Jordan's office.

Thank you,

Lauren Meus
Hearing Docket Clerk
U.S. Coast Guard