Feb 16 2024

FOIA follies at the State Department

It’s sometimes hard to say which Federal agency does the worst job or displays the most bad faith in responding (or not responding) to Freedom Of Information Act requests.

But the latest actions by the FOIA office of the Department of State certainly place near the top of our all-time scorecard of FOIA follies.

In the past, our worst FOIA experiences have been predominantly with the Transportation Security Administration (TSA) and other components of the Department of Homeland security (DHS). There was the time the TSA’s Chief Privacy [sic] Officer circulated libelous statements about us to the FOIA offices of all DHS components, in the hope of influencing them not to take us or our requests seriously, and then the TSA FOIA office tried to hide this misconduct from us by illegally redacting the libelous lines from the versions of their internal email messages that they released to us. We found out only when another staff person accidentally sent us an unredacted copy of the incriminating TSA email.

For more than a decade, the TSA FOIA office has included knowingly false bad-faith boilerplate in every letter or email message it sends about any FOIA request, claiming that “This office can be reached at 571-227-2300”. That same number and a toll-free number that goes to the same line, 866-364-2872, are the only phone numbers listed on the FOIA section of the TSA’s website or on FOIA.gov. But as anyone can easily verify, that number is answered by an automated system of recorded messages with no option even to leave a voicemail message, much less to reach any human being. The recording played at that number begins, “This phone line is not staffed by FOIA employees.” It’s impossible to contact the FOIA office, or to contact anyone, at that number.

The recorded phone messages advise FOIA requesters to contact the TSA FOIA office by email, but our email messages to that office are rarely answered. It’s unclear if they are received and ignored, or not received at all. If your email to the TSA FOIA office is filtered out as spam, there’s no way to know, or to follow up by phone. When we wrote to the TSA’s FOIA Public Liaison about this, at the address in their letters and on their website, by certified mail, return receipt requested, our letter was returned marked “Vacant. Unable to Forward.”

So what has the State Department done to rival the TSA’s record of FOIA bad faith?

The saga begins at some unknown date more than a decade ago, when the State Department began singling out some arbitrarily selected subset of disfavored applicants for U.S. passports and illegally demanding that they fill out a bizarre supplemental “long form” passport application asking  questions such in what church they were baptized, every address at which they had ever lived, and every employer for which they had worked. (Imagine trying to fill that out if you worked as a casual laborer.)

The selective imposition of a deliberately more difficult questionnaire for some applicants is disturbingly reminiscent of the “Jim Crow” practice of selectively requiring African-American applicants for voter registration to answer a more difficult version of a literacy or civics questionnaire.

The Paperwork Reduction Act requires that all forms like this be approved by the Office of Management and Budget before members of the public can be required to fill them out, but the State Department never submitted this passport form to OMB.

In 2011, however, the State Department asked OMB to approve an even longer supplemental “long form” for certain applicants for U.S. passports, adding questions such as your mother’s address one year prior to your birth, the dates of each of your mother’s pre-natal medical appointments, a complete list of everyone who was in the room when you were born, and whether (and in what circumstances) you were circumcised.

We filed a FOIA request in April 2011 with the State Department to find out how long this and similar unapproved forms had been in use, how many passport applicants had been singled out for this second-class treatment, and how they were selected.

In July of 2011, we filed another FOIA request to find out what had happened to our unanswered complaints of human rights violations by the State Department, including those related to passport issuance and requirements.

In 2016, five years later, with both of these requests still unanswered (despite our repeated efforts to find out when we could expect responses), we got a completely improper letter asking  if we were still interested in receiving the records we had requested, and threatening to illegally “close” our requests without action unless we immediately replied.

After we wrote back to tell the State Department that we were still interested and why their letter was improper, we got a phone call and a letter of apology from the (Acting) Co-Director of the State Department’s FOIA office, assuring us that in the future, “You do not need to remind us of your continued interest in these cases.”

But that apology didn’t get us responses to our FOIA requests.

In 2017, the main State Department FOIA office sent us a letter closing our request for records related to our human rights complaints, saying that “the Office of Passport Services CA/PPT/L) responded to you in a separate correspondence.” But to this day, we’ve never received any communication from the Office of Passport Services.

We appealed, and two years later, in 2019, an administrative appeals panel composed of retired Foreign Service officers notified us that, “The Office of Passport Services of the Bureau of Consular Affairs (CA/PPT/L) is conducting a renewed search of its files. We believe that our statement to you in our letter of December 22, 2017, which referred to separate correspondence having been sent to you from the Office of Passport Services, may have been in error, as we are unable to locate a copy of that correspondence. The Office of Passport Services will inform you directly of the results of its renewed search.”

On appeal, we were also told in 2019 that a  different portion of our request would not be processed unless we narrowed it. But we were provided with no point of contact with whom we could confer to find out what narrowing would be deemed sufficient.

Almost five years after that decision on our administrative appeal, we’ve still heard nothing — not even an acknowledgement of receipt of our voicemail and email messages — from the  Office of Passport Services. The FOIA Public Liaison has told us that they are still “unable” to determine the status of the portion of our request that was supposedly referred to the Office of Passport Services.  And we’ve received no response to our repeated requests to confer regarding narrowing of the other unprocessed part of our request.

In April 2023, we wrote to the Chief FOIA Officer for the Department of State requesting a meeting to discuss these and our other pending requests and appeals. We got no answer.

Instead, we got another “Still interested?” letter earlier this month, again threatening to (illegally) close one of our requests without a response, “because we have not received any communication from you in the last several years,” despite dozens of attempts we have made — by phone, by email, and my certified mail — to obtain the status of these requests, and despite the explicit written promise to us by the head of the State Department’s FOIA office in 2016 that, “You do not need to remind us of your continued interest in these cases.”

We’ve written back again to the State Department’s Chief FOIA Officer, assuring them that we are still interested in receiving responses to our requests, summarizing this saga of more than a decade of mishandling of our requests and appeals, and again requesting  the status of our requests and appeals and an opportunity to meet and confer.

The canonical answer to the question, “What can a FOIA requester do?” is that we could sue. But the reality is that most FOIA requesters can’t afford to sue every time an agency fails to comply with the FOIA law. In the real world, legal “rights” for most of us are limited to those rights that government agencies recognize and respect. The right to sue (what lawyers call a “private right of action” to enforce the law) is necessary but not sufficient. We shouldn’t have to wait five years, or sue, to find out the status of a FOIA request or what changes an agency wants us to make before it will begin to process a request.

One thought on “FOIA follies at the State Department

  1. In dealing with the non-responsive IRS regarding a mistake they (NOT I) made, I found that responses are quickly made when I supply full documentation to the Representative and Senators that represent me in Congress.

Leave a Reply

Your email address will not be published. Required fields are marked *