A lawsuit filed last week by the New York Times shows that even reporters for the  Gray Lady have been targeted by U.S. Customs and Border Protection (CBP) for the same special scrutiny as less-mainstream journalists, and that the Department of Homeland Security (DHS) FOIA and Privacy Office continues to use the same tactics in responding to requests for its files about travelers, even when dealing with the Times, as it has used in response to requests and lawsuits by disfavored requesters such as ourselves:

• Losing requests and appeals, or claiming to have no record of them;
• Delaying responses or simply ignoring requests;
• Failing to refer requests to the DHS components they knew were most likely to have responsive records; and
• Claiming not to have sufficient information to locate records, or not to have identified responsive records, even when official notices published by the DHS or its components such as CBP have stated that records of this sport are part of a “system of records” retrievable by name or other personal identifier.

According to their complaint, two reporters for the Times, C.J. Chivers and Mac William Bishop, were “subject to segregated questioning by DHS employees at JFK on May 24, 2013, as they prepared to board an international flight for a work assignment as journalists.”

Both reporters subsequently filed requests with the DHS headquarters for “records used or created by DHS employees in respect to the questioning of Plaintiffs at JFK airport” and for “all information and records in the possession of DHS concerning” them.

It appears that the Times’ reporters were unfamiliar with the Privacy Act “System Of Records Notices” that the DHS has published, which are required to describe which agencies keep which types of records about individuals. A SORN must be published, and must disclose the type of information contained in such a systems and how it is used,  even when the records themselves have been exempted from disclosure.

In any event, the Times’ reporters didn’t send their requests to CBP or specifically mention that CBP records should be included in the search for responsive records. And they didn’t specifically refer to the systems of records (including the Automated Targeting System and TECS) that should be searched.

This shouldn’t be necessary, of course, but in our experience, DHS FOIA officers pretend to be even more incompetent than they really are. Unless you spell out which systems of records of which DHS components you want them to search, they will search (if at all) only in places other than those where the responsive records are likely to be found.

The records that enabled the DHS to intercept Messrs. Chivers and Bishop at JFK airport, as well as the records of their questioning (which was probably conducted by CBP officers) are almost certainly part of the CBP “TECS” and/or “Automated Targeting System” (ATS) databases.

We’ve written previously about How airline reservations are used to target illegal searches using TECS records, using examples of DHS records related to searches and questioning of other journalists.  We’ve posted templates to request your own records as well as examples of responses.  Contact us if you’d like help interpreting responses to your requests.

Rather than referring the Times’ reporters requests to CBP or searching for their TECS and ATS files, the DHS headquarters FOIA office:

1. Lost (or pretended to lose) their requests;
2. Delayed responses, or failed to respond at all;
3. Referred the requests to two other DHS components (TSA and ICE) that they knew or reasonably should have known would be unlikely to have the requested records, but not to CBP; and
4. Claimed not to have enough information to conduct a search, even though TECS and ATS are specifically designed to allow travel records to be searched for by as many criteria as possible: name, passport number, credit card number used to pay for the ticket, telephone number provided to the airline when reconfirming reservations, IP address from which the reservation was made, etc.

All this is depressingly familiar to us from our years of experience in trying to obtain such records.

In light of the involvement and intimate familiarity of the DHS headquarters FOIA and Privacy Office with the ongoing, high-level controversy over usage of, and access to, PNR data included in the TECS and ATS systems operate by CBP, the failure to refer the request to CBP is unambiguous evidence of either bad faith or gross incompetence in processing the requests from the Times’ reporters.

We wish the Times and its reporters all success in their lawsuit.