Vexatious Requestors / Vexsome Filers / Litigious FOIA Requestors / Frequent Flyers List (United States Customs and Border Protection)

Andrew Free
N/A
MuckRock News, DEPT MR158474
263 Huntington Ave
Boston, Massachusetts 02115

02/13/2024

CBP-FO-2024-057890

Dear Andrew Free,

This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) requesting CBP maintained records. Specifically, you requested To Whom It May Concern:

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

Any list of Freedom of Information Act requestors identified as vexatious, vexsome, litigious, burdensome or otherwise designated for specialized processing, supervisory-level or legal-counsel-level review, or tracking by your agency's FOIA office.

By way of example, the Federal Bureau of Investigation has maintained a "Vexsome Filer" list for years, according to records released by expert FOIA requestor and journalist John Greenwald: https://www.theblackvault.com/documentarchive/fbi-issues-redacted-vexsome-filer-list-marking-departure-from-past-transparency-practices/.

Please task a search beginning on January 1, 2023, and continuing until the day on which your FOIA office initiates the search.

Please search your FOIA office first, but, in accordance with Iturralde, follow up on any obvious leads.

I am willing to this request if the volume of documents returned exceeds 500 pages.

I hereby request expedited processing of this request, and pursuant to 6 CFR 5.5(e), I make the following statements under penalty of perjury pursuant to 28 USC 1746:

1. I am a member of the media primarily engaged in information dissemination.
2. I have submitted more than 200 FOA requests to DHS agency FOIA offices since May 2019.
3. The vast majority of these requests remain in extended backlogs, often with processing times that far exceed the median and average times reported by the agency.
4. DHS Agency FOIA offices have repeatedly excepted my requests from a first-in, first-out processing by providing responses to FOIA requests that contain the same information I sought, despite their filing the request after I did.
5. DHS has not promulgated any regulation or published any subregulatory rule, policy, procedure, guidance, manual, or other instruction to staff regarding the targeting or use of a vexsome filer or similar designation.
6. Consequently, any application of such internal designation to requests I have submitted would appear violate 5 USC 552(a)(2)(E)(i) & (ii).
7. DHS FOIA offices have repeatedly been held to engage in a pattern and practice of FOIA violations by federal courts. See, e.g., Owen v. ICE (CD Cal), Nightengale v. USCIS (ND Cal).
8. There is an urgency to inform the public about actual or alleged government misconduct - namely, the use/misuse of a vexsome FOIA filer list to deny, slow, or meter requestors' FOIA productions based on the frequency with which we exercise our statutory rights to demand information from our (nominally) democratically accountable institutions.
9. Placing this request in the regular track for processing will doom it to multi-month, if not multi-year purgatory at your agency's current processing rate, effectively covering up the potentially unlawful practice of discriminatory treatment based on the frequency with which a particular requestor exercises their statutory right to seek information about what our government is up to.

Thank you for your timely consideration of this expedited processing request.

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

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CBP does not maintain any such list described and requested.

Note: CBP does not have complete records of apprehensions made by Border Patrol before 2000. Records of apprehensions made by Border Patrol before 2000 may be available in the A-File maintained by USCIS.

This completes the CBP response to your request. You may contact CBP's FOIA Public Liaison, Charlyse Hoskins, by sending an email via your SecureRelease account, mailing a letter to 90 K St, NE MS 1181, Washington DC, 20229 or by calling 202-325-0150. (If you need telecommunication relay service (TRS) assistance to communicate with the CBP FOIA Office and you are in the United States, please dial 711 to obtain TRS assistance and notify the Communications Assistant that you want to contact the CBP FOIA Office at the telephone number (202) 325-0150). The FOIA Public Liaison is able to assist in advising on the requirements for submitting a request, assist with narrowing the scope of a request, assist in reducing delays by advising the requester on the type of records to request, suggesting agency offices that may have responsive records and receive questions or concerns about the agency’s FOIA process. Please notate file number CBP-FO-2024-057890 on any future correspondence to CBP related to this request.

For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.

If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.8. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via SecureRelease. If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia. Additional information can be found at the following link https://www.cbp.gov/sites/default/files/assets/documents/2019-Dec/definitions-exemptions-foia_0.pdf.

Additionally, you have a 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.

Please note that this message has been sent from an unmonitored e-mail account. Any messages sent to this account will not be read.

Sincerely,

U.S. Customs and Border Protection