CREW I citizens for responsibility

and ethics in washington

March 28,2011

By Facsimile (703-235-0442) and email (foia @hg.dhs.gov)

Director, Disclosure and FOIA

Privacy Office
U.S . Department of Homeland Security
245 Murray Drive SW , Building 410
STOP-655
Washington, D.C. 20528-0655

Re: Expedited Freedom of Information Act Request

Dear Sir/Madam :

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for
record s, regardless of format , medium, or physical characteristics, and including electronic
records and information, audiotapes, videotapes and photographs, pur suant to the Freedom of
Information Act ("FOIA"), 5 U.S.c. §§ 552, et seq., and U.S. Department of Homeland Security
("DHS") regulations, 6 C.F.R. Chapter 1 and Part 5.

Specifically, CREW seeks copies of all documents DHS provided to the House Oversight
and Government Reform Committee in response to Committee Chairman Darrell Issa 's reque sts
of January 14,2011 , and February 1,2011.

Please search for responsive records regardless of format , medium, or physical

characteristics. Where possible, please produce records electronically, in PDF or TIF format on a
CD-ROM. We seek records of any kind , including electronic records, audiotapes, videotapes,
and photographs. Our request includes any letter s, emails, facsimiles, telephone messages, voice
mail messages, and transcripts, notes , or minutes of any meetin gs, telephone conversations, or
discussions. Our reque st also includes any attachments to these record s.

If it is your position that any portion of the reque sted record s is exempt from
disclosure , CREW requests that you pro vide it with an index of thos e docum ents as requir ed
under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 4 15 U.S. 977 (1972 ). As
you are aware , a Vaughn index must describe each document claim ed as exempt with sufficient
specificity "to permit a reasoned judgment as to whether the material is actually exempt under
FOIA." Founding Church ofScientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Moreover,
the Vaughn index must "describe each document or portion thereof withheld, and for each
withholding it mu st discuss the consequences of supplying the sought-after information." King v.

1400 Eye Street, N.W. , Suite 450, Washington, D.C . 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org
Director, Disclosure and FOIA
March 28,2011
Page Two

us. Dep't ofJustice, 830 F.2d 210,223-24 (D.C. Cir. 1987) (emphasis added). Further, "the
withholding agency must supply' a relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating those claims with the particular
part of a withheld document to which they apply.'" Id. at 224 (citing Mead Data Central v. us.
Dep 't ofthe Air Force, 566 F.2d 242,251 (D.C. Cir. 1977)).

In the event some portions of the requested records are properly exempt from disclosure,
please disclose any reasonably segregable non-exempt portions of the requested records. See 5
U.S.c. § 552(b). Ifit is your position that a document contains non-exempt segments, but that
those non-exempt segments are so dispersed throughout the document as to make segregation
impossible, please state what portion of the document is non-exempt, and how the material is
dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of
nonsegregability must be made with the same degree of detail as required for claims of
exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is
not reasonable to segregate portions of the record for release.

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11, CREW requests a

waiver of fees associated with processing this request for records. The subject of this request
concerns the operations of the federal government and the disclosures likely will contribute to a
better understanding of relevant government procedures by CREW and the general public in a
significant way. Moreover, the request is primarily and fundamentally for non-commercial
purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d
1282,1285 (9thCir. 1987).

Specifically, these records are likely to contribute to greater public awareness of the truth
behind allegations that political appointees at DHS have interfered with the FOIA review process
at DHS. See Jennifer Epstein and MJ Lee, DHS called FOIA vetting 'bananas,' Politico, March
28,2011; Ted Bridis, Emails: Insiders Worried Over Political 'Meddling,' Associated Press,
March 28, 2011 (botth attached as Exhibit A). This issue currently is the subject of an
investigation by Rep. Issa as chairman of the House Oversight Committee, and the subject of an
upcoming hearing before the committee. Id. The Oversight Committee, however, has not yet
made any of these documents public.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

Revenue Code. CREW is committed to protecting the public's right to be aware of the activities
of government officials and to ensuring the integrity of those officials. CREW uses a
combination of research, litigation, and advocacy to advance its mission. The release of
information garnered through this request is not in CREW's financial interest. CREW will
analyze the information responsive to this request, and will share its analysis with the public,
Director, Disclosure and FOIA
March 28, 2011
Page Three

either through memoranda, reports, or press releases. In addition, CREW will disseminate any
documents it acquires from this request to the public through its website,
\vww.citizensforethics.org, which also includes links to thousands of pages of documents CREW
acquired through its multiple FOIA requests as well as documents related to CREW's litigation
and agency complaints, and through www.scribd.com.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because
CREW qualifies as a "representative of the news media" pursuant to the FOIA and DRS
regulation 6 C.F.R. §5.11. In Nat 'I Sec. Archive v. Us. Dep 't ofDefense, 880 F.2d 1381, 1386
(D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the National
Security Archive was a representative of the news media under the FOIA, relying on the FOIA's
legislative history, which indicates the phrase "representative of the news media" is to be
interpreted broadly; "it is critical that the phrase 'representative ofthe news media' be broadly
interpreted if the act is to work as expected. . .. In fact, any person or organization which
regularly publishes or disseminates information to the public . . . should qualify for waivers as a
'representative ofthe news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis
added), cited in id.

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, \vww.citizensforethics.org, that
received 71,353 page views in February 2011. In addition, CREW posts all of the documents it
receives under the FOIA on www.scribd.com. and that site has received 660,525 visits to
CREW's documents since April 14, 2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that
currently has 16,850 subscribers. CREWCuts provides subscribers with regular updates
regarding CREW's activities and information the organization has received from government
entities. A complete archive of past CREWCuts is available at
http://www.citizensforethics. org/newsletter.

Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics in

Washington, that reports on and analyzes newsworthy developments regarding government ethics
and corruption. The blog, located at http://www.citiznesforethics.org/blog, also provides links
that direct readers to other news articles and commentary on these issues. CREW's blog had
3,864 page views in February 2011.

Finally, CREW has published numerous reports to educate the public about government
Director, Disclosure and FOIA
March 28,2011
Page Four

ethics and corruption. See The Revolving Door, a comprehensive look into the post-government
activities of24 former members of President Bush's cabinet; Record Chaos, which examines
agency compliance with electronic record keeping responsibilities; and Those Who Dared: 30
Officials Who Stood Up For Our Country. These and all other CREW's reports are available at
http://www.citizensforethics.org/repOlis.

Based on these extensive publication activities, CREW qualifies for a fee waiver as a
"representative ofthe news media" under the FOIA and agency regulations.

Request for Expedition

Pursuant to 5 U.S.C. § 552(a)(6)(E)(i) and 6 C.F.R. § 5.5, CREW requests that DHS
expedite the processing of this request in light of the compelling need for the public to have
access to the requested information. As explained above, CREW is engaged primarily in the
dissemination of information it gathers from a variety of sources, including the FOIA, and seeks
the information requested here for the express purpose of disseminating it to the public.
CREW's website and www.scribd.com contain links to thousands of pages of documents CREW
acquired from multiple FOIA requests, as well as documents related to CREW's FOIA litigation
and other complaints.

Here there is a compelling need to inform the public about the truthfulness behind
allegations that DHS's processing ofFOIA requests has been compromised by interference from
political appointees. The public also needs this information to judge the legitimacy of the
ongoing congressional investigation into this matter, despite DHS's denials. The lack of full
disclosure and transparency surrounding this controversy undermines public confidence in both
DHS and Congress, and distracts DHS from attending to the already pressing demand to process
FOIA requests and reduce its backlog. Release of the requested documents will answer questions
as to whether DHS's FOIA processing has been subject to political interference.

Under these circumstances, CREW clearly meets the requirements for expedition set out
in the FOIA and DHS regulations.

Pursuant to C.F.R. § 5.5(d)(3), the undersigned hereby certifies that the basis for this
request for expedition is true and correct to the best of her knowledge and belief.

Conclusion

If you have any questions about this request or foresee any problems in releasing fully the
requested records please contact me at (202) 408-5565. Also, if either CREW's request for a fee
waiver or its request for expedition is not granted in full, please contact our office immediately
upon making such a determination. Please send the requested records to Anne L. Weismann,
Director, Disclosure and FOIA
March 28, 2011
Page Five

Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N .W., Suite 450 ,
Washington, D.C. 20005.

Sincerely,

Anne L. Weismann
Chief Counsel

Enclosure
EXHIBIT A
 DHS called FOIA vetting 'bananas' - POLITICO.com Print View Page 1 of2

P LIT
DHS called FOIA vetting 'bananas'
By Jennifer Epstein and MJ Lee
Mardi 28, 20'1'1 07:05 AM EDT

Ahead of a congressional hearing this week on whether senior political appointees at the
Department of Homeland Security have blocked the release of some documents requested
under the Freedom of Information Act, a series of newly uncensored emails indicates that some
staffers complained for months of internal "meddling" by Obama-appointed officials.

Obtained by The Associated Press, the emails describe "crazy" and "bananas!" political
reviews of document requests, and "constant stonewalling" as files went to Homeland
Security Secretary Janet Napolitano'S political staff as part of the pre-release vetting process.

President Barack Obama has said that federal workers should "act promptly and in a spirit of
cooperation" to fulfill FOIA requests, and Attorney General Eric Holder has stressed that
"unnecessary bureaucratic hurdles have no place in the new era of open government." But
critics say that the administration has been bogged down by political interests in fulfilling
document requests from journalists, watchdog groups and ordinary citizens.

"Redaction decisions have always been made by FOIA professionals and career legal
staff," Homeland Security spokeswoman Amy Kudwa said in an statement to POLITICO.

In one recent instance cited by the AP, immigration rights advocates had asked the
department for e-mails that political appointees had sent to U.S. Immigrations and
Customs Enforcement about a controversial program. The internal search uncovered
"embarrassing, crude exchanges," that were revealed not by the senders of those emails
but by the recipients.

"Apparently these embarrassing exchanges didn't get turned over when the (political) front
office conducted its search but they did when the ICE employees copied on these
exchanges coughed up the responsive records," the FOIA unit's associate director,
William Holzerland, wrote in January, the AP said.

Kudwa said that "no responsive documents were withheld" by the department's political
office. The Privacy Office, she added, never requested that the political appointees search
for responsive documents on the ICE issue.

The department's chief privacy officer, Mary Ellen Callahan, herself a political appointee,
warned in emails that the department could be sued for the delays sparked by the political
reviews. "This level of attention is CRAZY," she wrote to her deputy in late 2009, musing
that she hoped someone would submit a FOIA request on the process itself, the AP
reported. Days later, the AP filed a FOIA request for documents related to political vetting
and received close to a thousand pages of censored emails last summer.

"When (the chief information office) pulled off the emails for these individuals, the page
count is much higher, indicating that [Napolitano's deputy chief of staff Amy Shlossman]
and [chief of staff Noah Kroloff] possibly did not retrieve all the responsive emails or opted
not to produce all responsive ernails," Catherine Papoi, then a deputy, wrote in May to
Callahan. "I think we have an obligation to compare the hard copy emails to those pulled

http://dyn.politico.com/printstory.cfm?uuid=EC2FOAB7-625E-4965-A2BE-5 5766132B326 3/28/2011

 DHS called FOIA vetting 'bananas' - POLITICO.com Print View Page 2 of2

by the CIO from the individuals' email accounts to determine why the discrepancy."

The department contends that the discrepancies had to do with the formatting of the
emails, and that all the content is identical.

The Freedom of Information Act requires that the government release information to the
public unless it is deemed a threat to national security.

Reporting at the time prompted an investigation by the department's inspector general and
an examination by Rep. Darrell Iss a (R-Calif.), who is now the chairman of the House
Oversight and Government Reform Committee.

Callahan and Ivan Fong, the department's general counsel, are set to testify before the
committee on Thursday.

© 2011 Capitol News Company, LLC

http://dyn.politico.com/printstory.cfm?uuid=EC2FOAB7-625E-4965-A2BE-55766132B326 3/28/2011
 Emails: Insiders Worried Over Political 'Meddling' Page 2 of9

Emails: Insiders Worried Over Political 'Meddling'

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WASHINGTON - The Homeland Security Department official in charge of submitting sensitive government
files to political advisers for secretive reviews before they could be released to citizens, journalists and
watchdog groups complained in em ails that the unusual scrutiny was "crazy" and hoped someone outside the
Obama administration would discover the practice, The Associated Press has learned.

Chief Privacy Officer Mary Ellen Callahan, who was appointed by Homeland Security Secretary Janet
Napolitano, complained in late 2009 that the vetting process was burdensome and said she wanted to change it,
according to uncensored emails newly obtained by the AP. In the emails, she warned that the Homeland
Security Department might be sued over delays the political reviews were causing, and she hinted that a reporter
might find out about the vetting. The reviews are the subject of a congressional hearing later this week and an
ongoing inquiry by the department's inspector general.

"This level of attention is CRAZY," Callahan wrote in December 2009 to her then-deputy, Catherine Papoi.
Callahan said she hoped someone outside the Obama administration would discover details of the political
reviews, possibly by asking for evidence of them under the Freedom of Information Act itself: "I really really
want someone to FOIA this whole damn process," Callahan wrote.

Callahan is expected to be a central witness during an oversight hearing Thursday by the House Government
Reform and Oversight Committee. Anticipating the hearing, the department announced internally Monday that
any further political vetting of information requests will be completed within 24 hours. The congressional
investigation into government transparency under President Barack Obama is among the earliest by Republicans
since they won control of the House and targets one of the first pledges Obama made after he moved into the
White House.

http://www.huffingtonpost.com/20 11/03/28/obama-foia-homeland-security-emails_n_8413... 3/28/2011

Emails: Insiders Worried Over Political 'Meddling' Page 3 of9

Less than one week after Callahan's email, on Dec. 21, the AP formally requested the records about the
controversial political vetting. The agency ultimately turned over more than 995 pages of emails last summer,
after a seven-month fight, and the AP wrote about the program. But the emails were heavily censored under a
provision in the Freedom of Information Act allowing the government to withhold passages that describe
internal policy-making deliberations.

The newly obtained versions of the same internal emails are not censored. They show that insiders described the
unusual political vetting as "meddling," "nuts" and "bananas!" Together with other confidential emails obtained
by the AP for the first time, the files reflect deep unease about the reviews and included allegations that
Napolitano's senior political advisers might have hidden embarrassing or sensitive emails that journalists and
watchdog groups had requested. The government said this didn't happen.

After an admitted al-Qaida operative tried to blow up a commercial airliner flying to Detroit on Christmas 2009,
the AP asked for emails sent among Napolitano; her chief of staff, Noah Kroloff; deputy chief of staff Amy
Shlossman; and four others. But the number of printed pages that Kroloff and Shlossman turned over to the
FOIA unit was much less than what a computer search indicated should have existed, according to emails. The
department said Monday that the disparity was an idiosyncrasy of how the computer searches were conducted
and that no emails were hidden.

"I think we have an obligation to compare the hard copy emails to those pulled by the (chief information office)
from the individuals' email accounts to determine why the discrepancy," Papoi wrote in May to Callahan.

Department spokeswoman Amy Kudwa said Monday that no emails were withheld by Napolitano's office, and
no one complained that emails weren't turned over that should have been. The department said its electronically
conducted searches distinguish each email within a conversation thread as a separate message, so the number of
printed pages from such searches appears higher than when an employee manually prints emails from an inbox
but the output is the same.

"At no point did anyone alert the office of the secretary or the office of the general counsel of concerns that
responsive documents had not been submitted for review," Kudwa said in a statement. "Had any concerns been
raised, appropriate steps would have been taken."

The Freedom of Information Act, the main tool forcing the government to be more transparent, is designed to be
insulated from political considerations. Anyone who seeks information through the law is supposed to get it
unless disclosure would hurt national security, violate personal privacy or expose confidential decision-making
in certain areas. People can request government records without specifying why they want them and are not
obligated to provide personal information about themselves other than their name and an address where the
records should be sent.

But at the Homeland Security Department, since July 2009, career employees were ordered to provide political
staffers with information about the people who asked for records - such as where they lived and whether they
were private citizens or reporters - and about the organizations where they worked. If a member of Congress
sought such documents, employees were told to specify Democrat or Republican. No one in government was
allowed to discuss the political reviews with anyone whose information request was affected by them.

Papoi was replaced as deputy chief FOIA officer earlier this month by her new boss, Delores J. Barber, who
took over Papoi's title and moved into Papoi's office. The Republican chairman of the House oversight
committee, Rep. Darrell Issa of California, said that "appeared to be an act of retaliation." Issa identified Papoi
as the employee who confidentially complained in March 2010 to the DHS inspector general about the political
vetting of requests for government files. The department said Papoi, who is on leave, applied unsuccessfully for
a new supervisory position ultimately awarded to Barber and that Papoi's salary was unaffected.

The emails also raise doubts about whether the em ails previously released to the AP were properly censored.
"The government should not keep information confidential merely because public officials might be
embarrassed by disclosure, because errors and failures might be revealed or because of speculative or abstract
fears," Obama said shortly after he took office.

http://www.huffingtonpost.com/20 11/03/28/obama-foia-homeland-security-emails_n_8413,.. 3/28/2011

 Emails: Insiders Worried Over Political 'Meddling' Page 4 of9

In a statement, Kudwa said, "Redaction decisions have always been made by FOIA professionals and career
legal staff."

The government censored Callahan's email that described the "crazy" scrutiny by political advisers. It also
censored another email by associate FOIA director William Holzerland, who told Callahan in September 2009
that the political reviews were "bananas!" Also censored were complaints by Papoi, the former deputy, that the
political reviews were "meddling" and, together with "constant stonewalling" by the department's top lawyers,
causing delays in the agency's open records department.

"I currently have 98 requests that are tagged by the front office for tracking and forwarding to the front office,"
Papoi wrote in one previously censored passage. "I simply don't have the time or staff to review all ofthose
requests before we send them on. Quite honestly, we shouldn't have to."

The AP protested last year that the em ails it received had been improperly censored, but the Homeland Security
Department never responded to its formal appeal.

Online:

Censored copies of government emails: http://www.dhs.gov/xfoia/gc 1283193904791.shtrn

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