The more we learn about the TSA’s handling of our Freedom Of Information Act (FOIA) requests, the uglier it gets. The latest chapter in the TSA’s vendetta against us is described in a FOIA appeal we filed this week.
The DHS, which of course includes the TSA, has long had a department-wide policy requiring special political approval — and often delay — of all FOIA requests from media, watchdog, or activist individuals or organizations, which we know included requests from The Identity Project.
In addition, we have now obtained less redacted versions of internal TSA and DHS email messages (which were officially released to us only with the most incriminating portions blacked out) showing that the TSA’s Chief Privacy Officer engaged in a campaign of character assassination intended to persuade TSA FOIA staff that individuals associated with The Identity Project are lunatics and liars and hold particular opinions and beliefs as a result of which we and our requests should be ignored or not taken seriously.
In the libelous internal TSA email message reproduced above, TSA Privacy Officer Peter Pietra had this to say about Edward Hasbrouck, a consultant to The Identity Project who has filed many of our FOIA requests (and asked questions of Mr. Petra and filed other FOIA requests for records related to Mr. Petra’s work):
Ed is crazy as a loon, and as rude and belligerent at [sic] Bill says…. He misrepresents any interaction you have with him, so be wary (even where there is video that contradicts his version of events). He also thought 9/11 was a govt conspiracy because the FBI investigated it instead of the NTSB.
This message was distributed to TSA FOIA officers including those involved in processing our FOIA requests. And it was sent — the TSA itself later found — with the intention of influencing their decisions.
Even if Mr. Hasbrouck held these opinions and beliefs (which he doesn’t — the allegations about his opinions and beliefs are pure fabrications by TSA staff), who we are or what individuals associated with our organization think or believe is irrelevant to our entitlement to access government records pursuant to FOIA.
Attempting to induce FOIA staff to base FOIA processing or decisions on their opinions of the requesters’ beliefs is among the most serious forms of possible misconduct by officials responsible for compliance with FOIA.
If there’s anything worse, it’s withholding requested government records in order to cover up offical misconduct. But that’s exactly what happened when we requested the email message above.
The TSA’s Chief FOIA Officer and FOIA Public Liaison, Yvonne Coates, redacted the libelous portions of the message on the grounds that they were part of the decision-making process (even though she knows that making FOIA decision on the basis of who we are or what we believe is forbidden by FOIA) and that disclosure of these portions of the message “would injure the quality of future agency decisions by discouraging the open and frank policy discussions between subordinates and superiors”:
The dismal track record of DHS and TSA noncompliance with FOIA began with the creation of these agencies during the Bush administration, and has continued during the Obama administration. Our FOIA requests (like those of other requesters) have routinely been delayed or lost. Responses have been incomplete, improperly and excessively redacted, and almost always months or years later than the deadlines in the law.
The TSA has severe problems with both incoming and outgoing mail. All DHS mail is handed over to a contractor and diverted to a “screening” facility at an undisclosed location somewhere outside Washington, the Consolidated Remote Delivery Site (CRDS).
DHS employees say the “screening” at the CRDS — perhaps x-ray or ultraviolet treatment to kill anthrax? — frequently leaves incoming mail looking burnt or browned, brittle, and illegible. Mail including FOIA and Privacy Act requests and appeals is often lost in the process, often without a trace because no logs are kept of mail moving through the offsite “screening” process.
To compound these problems, as the DHS has grown its components have repeatedly moved, often to undiclosed locations. FOIA requires all federal departments and agencies to promulgate regulations giving the public notice of the addresses at which FOIA requests are accepted. These must be published in the Federal Register, and are incorporated in the Code of Federal Regulations. But the DHS has ignored this requirement entirely. It’s been more than a decade since the DHS FOIA regulations, including FOIA request addresses, were last updated. No consideration has been given to the need to update the FOIA regulations when DHS FOIA offices are relocated.
FOIA requesters are reduced to searching for FOIA addresses on multiple DHS websites. Information on those sites is often inconsistent, inaccurate, and/or outdated, and none of them is reliably authoritative, unlike the proper Federal Register notices required by the FOIA statute. At one point, the main Federal FOIA website, “FOIA.gov”, gave a telephone number for FOIA inquiries to the entire DHS that was “not in service“.
The address of record for FOIA requests to the TSA, as most recently published in the Federal Register in 2003 and as incorporated in current Federal regulations, is “Transportation Security Administration, 400 Seventh Street, SW., Washington, DC, 20590”. This is the address of the headquarters of the Department of Transportation. So far as we can tell, no DHS component, and in particular no TSA or other DHS FOIA office, is located at this address, or has been for years.
Mail addressed to the TSA at this address, or at other addresses on DHS websites, is either refused, returned to the sender, redirected to the dead-letter office as undeliverable, or abandoned or destroyed by the mail-screening contractor. We’ve complained about this to the DHS and to the Congressional oversight committee investigating DHS compliance with FOIA, but have never gotten a response to those complaints. When we made a FOIA request for the records of what had happened to our complaint, we eventually learned that it had been brushed off or ignored by the TSA, the DHS Privacy and FOIA Office, and the DHS Office of Inspector General. It was treated as “a complaint about a website”, not as a complaint about violations of the FOIA statute requiring publication in the Federal Register of FOIA request addresses.
Meanwhile, as part of a pattern throughout the government of disclosing less and less detail about how to contact government offices (to protect the “security” of public servants in the performance of their official duties), the TSA and DHS stopped disclosing their office locations or closed their offices to the public. This makes it impossible to submit FOIA requests, contact FOIA officers (with status inquiries, for example), or inspect records in person. Staff directories are no longer made public, and the only telephone numbers or e-mail addresses made public are main office numbers and general mailboxes.
It became “normal” for us to leave messages in the TSA’s general voicemail every day for a week or two before anyone would call back. Many of our messages have never been returned. In one case, the TSA returned one of our calls three months later, seemingly unaware that the message had been left months earlier.
Our email sent to the designated FOIA request address often wasn’t opened by the FOIA staff for more than a week, and then only after we left repeated phone messages inquiring as to its status. Correctly-addressed mail sent by us to the FOIA address on the TSA website by Express Mail, and scheduled for next-day delivery, wasn’t received in that office — wherever it is really located — for more than two weeks. That’s longer than the deadline for a response to a request for “expedited” FOIA processing.
All this was apparent to anyone who, like us, was regularly attempting to exercise their right to access TSA and DHS records. The only thing that wasn’t clear was whether the problems were caused by incompetence, laziness, overwork and understaffing — or political or personal malice.
The answer to that question began to emerge in 2010 after the Associated Press, perhaps having been tipped off or perhaps merely seeking to uncover the source of its own difficulties in obtaining records, filed a FOIA request for records related to DHS FOIA processing policies and procedures. The DHS stalled, but after the intervention of the FOIA mediation office at the National Archives, the DHS eventually turned over records revealing that for years the DHS had been requiring weekly reporting to the DHS “front office” and White House liaison of all “significant” FOIA activity, defined to include any request to any DHS component from a media, watchdog, or “activist” individual or organization — including The Identity Project.
DHS officials would later describe this to investigators from a Congressional oversight committee and the DHS Office of Inspector General as merely a “reporting” and “awareness” program, but it was explicitly a review and approval program. The documents released to the AP showed that the DHS “Director of Departmental Disclosure and FOIA” gave written orders to all DHS component FOIA offices, with respect to these “significant” FOIA requests including ours, that “It is very important that your office not send the response to the requester until I notify you that the response has been reviewed and is cleared to be sent to the requester.” Records responsive to our FOIA requests that were sent for “review” by other offices sometimes weren’t approved for release for more than five months.
As its first response to the FOIA processing scandal, the DHS immediately exempted records related to processing of FOIA requests from disclosure pursuant to the Privacy Act. But an agency can’t exempt itself from FOIA. As soon as we learned of the DHS FOIA “review” program from the initial AP report in July 2010, we filed a FOIA request with the TSA for all records related to the processing of our previous FOIA requests.
It took more than three years for the TSA to provide the first grossly-incomplete and heavily-redacted semblance of a response, the defects in which are discussed in an appeal we filed this week.
The TSA didn’t send its “response” by email, as we had requested, and didn’t even mail it to our office. Instead, it was sent by snail-mail to Mr. Hasbrouck’s home address, while he was away from home, with no indication on the envelope that it was intended for our organization. We couldn’t, of course, have anticipated its arrival, since it was sent more than three years after the FOIA response deadline.
The TSA only looked for records within the TSA, even though our request included records of all agencies involved in processing our previous FOIA requests or contacted by the TSA about them, and even though our requests were mentioned in reports prepared by the DHS Privacy Office and sent to the DHS White House liaison and the FOIA Officers of every DHS component.
No electronic records were searched for, and no records were released in electronic form, even though such searches and releases of records in electronic form are explicitly required by FOIA. None of the FOIA processing logs or the Filemaker and Sharepoint databases used for tracking FOIA processing was searched.
We still haven’t been given access to any of the original records, to which we are entitled by FOIA.
We’ve posted the complete documents we received, and our request and appeal, as linked from this article. But because the TSA provided redacted excerpts from records only in the form of page images, the PDF files (and that of the appeal quoting them) are large. So we’ve quoted some key excerpts from our appeal below, for those who may not want or be able to download the complete documents:
In considering this appeal and reviewing the exemptions claimed by the agency, the appellate decision-maker must recognize that the presumption is in favor of disclosure, that the burden of proof is on the agency to establish a proper statutory basis for each withholding of all or part of any responsive record, and that, in this matter, the TSA is not entitled to any presumption of good faith or diligence, having forfeited any such presumption to which it might normally be entitled.
The TSA’s responses to our previous FOIA requests include conclusive evidence of a personal animus against me on the part of senior TSA officials involved in processing of FOIA requests; of the use of official TSA and DHS internal e-mail systems to disseminate false and libelous accusations against me, with the intent to (improperly) influence decisions with respect to requests made on behalf of the Identity Project and to discourage other agency personnel from diligent processing of such requests; of the improper invocation of FOIA exemption claims to attempt to avoid embarrassment by the agency or agency personnel and/or to conceal misconduct by the agency or agency personnel.
In one of our previous FOIA requests, we asked for access to and copies of records related to the processing of one of our complaints concerning the actions of the TSA FOIA Office…. In response to this request, by letter signed by Ms. Coates on November 30, 2011, the TSA released a redacted copy of a printout or page-view generated from the electronic record of an e-mail message sent on December 17, 2009, by Peter Pietra, TSA Chief Privacy Officer, to recipients including personnel of the TSA FOIA Office involved in processing our requests.
Ms. Coates, on behalf of the TSA, invoked the “deliberative process” privilege, pursuant to FOIA exemption (b)(6), to justify withholding portions of that message, including the following:
“Ed is crazy as a loon, and as rude and belligerent at [sic] Bill says…. He misrepresents any interaction you have with him, so be wary (even where there is video that contradicts his version of events). He also thought 9/11 was a govt conspiracy because the FBI investigated it instead of the NTSB.” (See copy attached as Exhibit G, and redacted copy, as released, attached as Exhibit H.)
These allegation are false and libelous. The allegations in the final sentence concerning my thinking about 9/11 are entirely unsupported by anything I have ever thought, written, or said to Mr. Pietra or anyone else. This allegation is pure fabrication on the part of Mr. Pietra. Use of official agency resources for character assassination of members of the public is obviously improper. Worse, these libels were promulgated through those channels, by a senior TSA official, to other TSA personnel including those known to be involved in processing our FOIA requests, with the intention that they be relied on in making decisions related to our requests.
We know this because of the invocation by Ms. Coates, on behalf of the TSA, of the “deliberative process” privilege, pursuant to FOIA exemption (b)(6), to justify withholding these portions of Mr. Pietra’s message. The deliberative process privilege is available only for advice, recommendations, and opinions that are part of an agency’s process of making a specific decision.
Accordingly, Ms. Coates could only have invoked this exemption, on behalf of the TSA, if she had determined that the redacted portions of this e-mail message were intended to influence a specific TSA decision – presumably, a decision with respect to one or more of our requests. The invocation of this exemption to justify this withholding is conclusive evidence that the designated TSA decision-maker had made an official determination, after due review of the records, that this specific portion of Mr. Pietra’s e-mail message was part of the deliberative process, that is, that it was intended to be relied on as advice or a recommendation with respect to agency action on one or more of our requests.
Even if these allegations against me were true (which they are not), FOIA does not permit consideration of the identity or beliefs of the requester as a factor in withholding, or releasing records (except to the extent that it is relevant to the determination of whether the requester is a media requester, which the TSA had already determined with respect to myself and The Identity Project).
Reliance on any such allegations about the requester as part of the decision-making process was clearly misconduct by Mr. Pietra and by the TSA, in blatant (if it became known) violation of FOIA. Agency officials and other personnel have a clear duty not to allow any of their their personal animus toward requesters to color agency decision-making.
The desire to avoid disclosure of misconduct or to avoid embarrassment to the agency or its personnel is not a permissible basis for withholding of records responsive to a FOIA request. By withholding these records after determining that they were intended to influence agency decisions in a manner which she knew or reasonably should have known was not permitted by FOIA, Ms. Coates made herself and the TSA parties to the improper attempt to cover up this misconduct.
To sum up, there is conclusive evidence in the portions of records already disclosed of actual malice towards me on the part of TSA officials; of the attempt (using agency resources and internal communications systems) to induce other TSA personnel to make decisions with respect to my requests on the basis of that malice and on the basis of (libelous) allegations about me, my actions, and my beliefs; and of improper use of FOIA exemption claims by TSA decision-makers (including Ms. Coates, the agency decision-maker on this request and the supervisor of all other TSA FOIA personnel as the TSA’s FOIA Officer and FOIA Public Liaison) to avoid public disclosure of this misconduct.
In this context, the appellate decision-maker should evaluate each withholding based on a claimed (b)(5) exemption with a strong presumption of agency bad faith in making these claims, and with due regard for the strong public interest in the release of records of government misconduct, including records identifying those agency officials and personnel responsible for such misconduct.
None of the responsive records are contained in “personnel or medical files”. In determining whether the responsive records are contained in “similar” files (that is, records that are primarily personal in nature, rather than records of official agency actions with respect to public matters) and whether disclosure of any such records would constitute a “clearly unwarranted” invasion of personal privacy, and would thus be permitted to be withheld under FOIA exemption (b)(6), the appellate decision-maker must recognize the extremely strong presumption in favor of disclosure, and give great weight to the importance of disclosure of information concerning the actions of high officials, agency misconduct, and agency practices that are the subject of legitimate public, media, and political concern. Each of these categories of information is implicated in the portions of records withheld in this matter.
As discussed above, it is incontrovertible on this record that there was serious misconduct by senior FOIA and Privacy Office officials of the TSA (and perhaps also other DHS components) in the processing of the FOIA requests to which the withheld records pertain. Is is also incontrovertible that senior TSA officials sought – through the dissemination of character assassination – to induce other agency and department personnel to engage in similar misconduct in regard to our requests. Any minimal invasion of personal privacy entailed in identifying the names, official agency affiliations and titles, and/or official office addresses, telephone numbers, and e-mail addresses is not “unwarranted”, much less “clearly unwarranted”, but is warranted by the public interest in disclosure of the nature, extent, and identities and official positions of the individuals responsible for agency misconduct.
Whether, to what extent, in what manner, and with what consequences DHS and component assessments of the character of FOIA requests and requesters improperly influenced or delayed processing of FOIA requests has been, and remains, a topic of great public concern. It has been the subject of extensive news reporting (as was discussed in our original request, Exhibit A), of a Congressional oversight investigation and report (see “A New Era of Openness? How and Why Political Staff at DHS Interfered with the FOIA Process“, staff report prepared for Chairman Darrell Issa, U.S. House of Representatives, Committee on Oversight and Government Reform, 112th Congress, March 30, 2011), of a Congressional hearing at which participants in the e-mail exchanges concerning our requests were called to testify (see “Why Isn’t The Department Of Homeland Security Meeting The President’s Standard On FOIA?“, Hearing before the Committee On Oversight and Government Reform, House Of Representatives, 112th Congress, 1st Session, March 31, 2011, Serial No. 112–22), and of an investigation and report by the DHS Office of Inspector General (see “The DHS Privacy Office Implementation of the Freedom of Information Act“, Department of Homeland Security, Office of Inspector General, Report OIG-11-67, March 2011).
The Congressional investigation staff also reported that senior DHS officials improperly directed that searches for responsive records be improperly restricted (as the search was, for as yet unknown reasons, in this case), and improperly directed that information be withheld to avoid embarrassment to the DHS or its components or personnel, including themselves.
A key issue in this investigative news reporting, Congressional investigation, Congressional hearings, and investigation by the DHS Office of Inspector General was exactly which DHS and component personnel played what role in the “review” of “significant” FOIA activities. Another key issue was what, if any, impact this “review” had on the content and timing of FOIA responses.
Knowing which individuals played what roles in processing of our request, whether they were political appointees or career civil servants or contractors, and whether they were privy to the libels circulated within the TSA and DHS about us, is crucial to public understanding of this issue.
The DHS OIG reported that, “We cannot establish how often the review process caused the delay of FOIA releases to the point of statutory violation (i.e., delays that extended the response time beyond the 20-business-day statutory deadline).” The Congressional investigation staff similarly reported difficulty in determining what effect the “review” process had on individual FOIA requests.
The records released in redacted form in response to this request contain indications of unexplained delays which heighten the importance of searching electronic records, releasing records in their original electronic form, releasing unredacted records, and allowing access to records.
For example, one e-mail message (see copy attached as Exhibit I) shows that an e-mail message containing a FOIA request sent to the address designated for such requests on the TSA website was not opened for eight days, and then only after we complained that the request had not been acknowledged.
Another FOIA request sent by Express Mail, and scheduled for overnight delivery, was not marked as received by the FOIA office to which it was addressed for eighteen days. (See redacted copy of airbill with handwritten annotations attached as Exhibit J). Although DHS officials told Congressional investigators and testified before Congress that “reviews” of “significant” FOIA activities did not result in delays of the release of records, one of the documents released in redacted form in response to this request shows that a response to one of our requests was not approved for release until more than five months after it was prepared and sent for “review”. (See copy attached as Exhibit K.)
It is of great importance for the public to know how these delays occurred, and what personnel were involved, in order to assess whether these delays were the result of official misconduct, and if so, who was responsible for that misconduct and/or for attempting to obstruct disclosure of misconduct.
Records relating to the chronology of actions taken, and the identities and official positions of those involved, are especially likely to be contained in e-mail headers and e-mail server log files recording who sent, received, forwarded, opened, and/or read relevant e-mail messages.
The requested records related to FOIA processing, including those not yet searched for and those improperly withheld, are of public interest and significance not merely in relation to these requests but as a significant case study of a pattern and practice of agency and department misconduct.
The TSA (or rather, the contractors at the CRDS) has received our appeal, but the TSA hasn’t respinded to our requests for an estimate of when, if ever, we can expect an answer.