In a victory for the Freedom Of Information Act (FOIA), an Administrative Law Judge (ALJ) has ruled that the Department of Homeland Security (DHS) must either disclose records of e-mail messages which we requested in the “native” file formats in which they are held on DHS servers or archival storage media, or must “demonstrate with sufficient justification that they cannot produce the documents in their original fully digital version.”
This ruling was made in response to an administrative appeal by the Identity Project of the DHS (non)-response to a FOIA request we made in 2016 for the reports submitted to the DHS each month on how may people attempted to enter Federal facilities without ID or with ID deemed “noncompliant” with the REAL-ID Act of 2005, and what happened to these people. How many were eventually allowed to enter, and how many were turned away?
Over the years, the DHS sent us a trickle of PDF files created by its FOIA office and subsitituted, without explanation, for the files we had requested. These PDF files contain redacted images of “pages” of messages viewed in some e-mail client software, but can’t be imported into any other e-mail program or indexed or searched as e-mail files. After more than five years, and without releasing any of the e-mail files we had requested (or even disclosing in what format they are held), the DHS declared its response “final”.
Since 1997, the FOIA statute has required that “an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” But when the new DHS set up its FOIA procedures in 2002, five years after this amendment to the FOIA law went into effect, the DHS completely ignored this provision of the FOIA law. Instead, it set up procedures and procured new software to substitute newly-created PDF files for all requested files. Only the substitute PDFs, and not the original files, are released. Requests for files in their original formats are ignored.
E-mail message files are, in fact, “readily reproducible” in their original formats. To comply with the requirements of the Federal Rules of Civil Procedure for “e-discovery” of Electronically Stored Information (ESI), DHS litigation counsel have and routinely use a variety of commercial e-discovery software designed to import, export, redact (with redaction audit logs), and reproduce these files while retaining their native formats. But DHS FOIA officers have neither been provided with, nor trained to use, the software used by litigators within their own Department to reproduce these files in their native formats.
Our FOIA appeal was referred to an Administrative Law Judge (ALJ) with the U.S. Coast Guard for a decision. When the DHS was created in 2002, the Coast Guard was the only agency included in the DHS that already had any ALJs. Although the primary expertise of Coast Guard ALJs was and is, naturally, in maritime law, the DHS has chosen not to appoint new ALJs to handle matters arising within other DHS components. Instead, the DHS has delegated responsibility to Coast Guard ALJs to adjudicate DHS matters, unrelated to the Coast Guard, ranging from FOIA appeals to civil penalties levied by the Transportation Security Administration (TSA) against airline passengers.
The ALJs decision does not mean that the DHS will necessarily start bringing its FOIA processing into compliance with the 1996 FOIA amendments, teach its FOIA officers to use the “e-discovery” tools used by DHS litigators, or produce the files we requested in the formats in which they are held. But if the DHS left hand (the Department-level FOIA office) does what the DHS right hand (the Coast Guard ALJ) has told it to do, it must either release those files to us, in those formats, or “demonstrate with sufficient justification that they cannot produce the documents in their original fully digital version.”