We’ve heard from numerous people over the years who have requested the files about their travel being kept by US Customs and Border Protection (CBP), or made other Freedom of Information Act requests to DHS component agencies, but who have never gotten any response. Letters to and from the DHS often get lost in “security screening” or wind up in the dead letter office.
In response to a lawsuit we brought, DHS and CBP claimed that they had no record at all of one of our FOIA and Privacy Act appeals, and no record of the existence of the person who had signed the receipt for our certified letter.
And we’ve seen letters sent in response to FOIA requests made years previously, asking requesters to confirm that they still wanted the information they had requested — as though government agencies could presume that theIr own delays had caused requesters to lose interest or abandon their requests.
Unfortunately, we aren’t alone: These turn out to be standard FOIA operating procedures for the DHS and other agencies.
A recent joint letter from more than a dozen organizations that work to promote government transparency points out that it is illegal to “close” a FOIA request because of the passage of time (i.e. the agency’s own delay in responding) or because a requester doesn’t “reconfirm” that they want they records they requested. The signers of the letter report that:
FOIA requesters have reported frequently encountering improper administrative closures across a variety of federal agencies. We are including evidence of several examples…. One particularly troubling instance of administrative closure arose from a request that the Electronic Privacy Information Center (“EPIC”) made to the TSA….
Other FOIA requesters, including some of the undersigned requesters, have received similar letters. We have attached letters by the DHS, DOJ, EPA, and State…. In meetings with transparency advocates, the Department of Justice’s Office of Information has publicly stated that it supports this practice.
The signers of the joint letter request an investigation of this illegal practice by the Office of Government Information Services (OGIS), which has been assigned with oversight responsibility as FOIA ombudsman.
A recent report by auditors from the Government Accountability Office reveals more malfeasance:
According to CBP officials… First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system.
According to the GAO report, “The officials stated that CBP subsequently cleared all of these requests.” But even if that’s true, who knows how many tens of thousands of additional FOIA requests may have been lost or “improperly closed”.
If you made a FOIA request to DHS, CBP, or any other DHS component, but haven’t received a response, you should ask the agency to which you submitted your request to inform you of the status of your request. By law, each agency must have in place a telephone or online system to provide status information on all pending FOIA requests, including an estimated date for completion of agency action on each request. If they don’t, you can complain to OGIS (for free and without a lawyer), or take the agency to court.