JUN Subject: Freedom of Information Act Request No Fee Waiver Denial

Transcription

1 Homeland Security Office of Inspector General Washington, DC JUN Ms. Lisette Garcia Judicial Watch, Inc. 425 Third Street SW, Suite 800 Washington, DC Subject: Freedom of Information Act Request No Fee Waiver Denial Dear Ms. Garcia: This acknowledges your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS) Office oflnspector General (OIG), dated May 30, 2012, and seeking communications respecting the legality of recovering improper payments of any kind disbursed via FEMA's Emergency Food & Shelter Program (copy attached for reference). Your request also seeks a fee waiver. Your letter was received in this office on May 30, 2012, and was assigned the above-referenced tracking number. Your request has been placed in the queue for processing in the order in which it was received. Simple requests are answered more quickly and will be placed on the fast track of our multi-track processing system. More complex requests, including those calling for a particularly large volume of records, are segregated into a group designated as Project Requests. These require significantly more processing time and are processed separately in the order in which received. Due to the increasing number offoia requests received by this office, we may encounter some delay in processing yo\11' request. Per Section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, DHS-OIG processes FOIA requests according to their order of receipt. Although DHS-OIG's goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10-day extension of this time period under 5 U.S.C. 552(a)(6)(B). As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, DHS-OIG hereby invokes this 10-day extension for your request, and estimates a response to your request to be provided within 30 business days. Please note, however, that the actual time required to respond to your request depends on how many responsive records and the types of records identified and located in our records search. If you care to narrow the scope of your request, please contact our office. We will make every effi>rt to comply with your request in a timely manner. The DHS FOIA Regulations, 6 CFR 5.1 l(k)(2), set forth six factors to examine in determining whether the applicable legal standard for a fee waiver has been met. I considered these factors in my evaluation of your request for a fee waiver: I. Whether the subject of the requested records concerns "the operations or activities of the government;"

2 2. Whether the disclosure is "likely to contribute" to an understanding of government operations or activities; 3. Whether disclosure of the requested information will contribute to "public understanding," as opposed to the individual understanding of the requestor; 4. Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities; 5. Whether the requester has a commercial interest that would be furthered by the requested disclosure; and 6. Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily in the commercial interest of the requester." As a requester, you bear the burden under the FOIA of showing that the fee waiver requirements have been met. Based on my review of your May 30, 2012 letter, and for the reasons stated herein, I have decided to deny your fee waiver request. In reaching my conclusion I have analyzed the above factors as they apply to the circumstances of your request. While the records you seek do concern the operations or activities of OHS and you do not appear to have an overriding commercial interest in the records, other relevant factors have not been met. To qualify for a fee waiver, you must make an adequate showing that a release of the information to you is likely to contribute significantly to the public at large's understanding of government operations or activities. Your assertions on how production of these records will contribute to the public's understanding of government operations or activities are, however, conclusory. For example, you state generally that: The particular records requested herein are sought as part of Judicial Watch's ongoing efforts to document the operations and activities of the federal government and to educate the public about these operations and activities. Once Judicial Watch obtains the requested records, it intends to analyze them and disseminate the results of its analysis, as well as the records themselves, as a special written report. Such general statements do not satisfy your burden under the FOIA of showing that fee waiver requirements have been met, as they are too speculative for me to conclude that a release to you would be of any interest to anyone but a narrow segment of interested persons. In addition, I am denying your request for status as a "representative of the news media." OHS FOIA regulations specifically define "representative of the news media" as "any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public." See, 6 C.F.R. 5. l l(b)(6). Based on the information contained in your letter, I am denying your request for media status because you have not presented a convincing argument that Judicial Watch, Inc. is an entity organized and operated to publish or broadcast news to the public.

3 At this point, without a fee waiver being granted, OHS regulations allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the OHS lnterim FOIA regulations as they apply to non-commercial or ''other" requestors. As a non-commercial requestor you will be charged 10-cents a page for duplication, although the first 100 pages are free, as are the first two hours of search time, after which y'ou will pay the per quarter-hour rate of pay ($4.00, $7.00, or $10.25) for the searcher. You stated in your request that you are willing to pay assessable fees up to $ You w m be contacted before any further fees are accrued. You have the right to appeal the determination to deny your fee waiver request. Your appeal must be in writing and received within 60 days of the date of this response. Please address any appeai to: FOIA/PA Appeals Unit OHS/Inspector General STOP Murray Drive, SW, Building 410 Washington, DC Both the envelope and letter of appeal must be clearly marked, "Freedom of Information Act/Privacy Act Appeal."' Your appeal letter must also clearly identify the OIG'"s response. Additional information on submitting an appeal is set forth in the OHS regulations at 6 C.F.R If you have any questions about this response please contact Kirsten Teal, FOIA/PA Disclosure Specialist, at The Office of Government Information Services (OGIS) also mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of If you wish to contact OGIS, you may that entity at ogis@nara.gov or call Assistant Counsel to the Inspector General

4 Copy of the FOIA Reguest

5 TRANSMISSIIJ'< VERIFICATIIJ'< REPORT I TIME 05/30/ :16 NAME JUDICIAL WATCH FAX TEL SER.# : 000G8N DATEtTlt.E FAX NO. /NAME DURATION PAGE{$) RESULT MODE 05/30. 00: :02:12 05 Cl< STANDARD 425 Third St., SW, Ste. 800 Washington. DC Phone: Fax: Internet: JudiciaIWatcli.. Fax To: Fax=. Phone: f'd\h CJ,He'F Pront11 D t.= (A"fe.(k:. 9/ D/7--0 I "2- Pages: (Including cover page) 5 CJ Oraent o For Review CJ Please Comment CJ Please Reply

6 Judicial Watcfi Because no one is above the law! May 30, 2012 VIA CERTIFIED MAIL & FACSIMILE: (703) ; (202) ; (202) ; (2()2) ; {202) Deputy FOIA Chief Delores Barber Dept of Homeland Security. Mail Stop Murray Dr., S.W., Bldg. 410 Washington, D.C FOIA Chief Katherine Gallo Office of the Inspector General Dept. of Homeland Security Mail Stop Murray Dr., S.W., Bldg. 410 Washington, D.C FOIA Chief Anthony M. Bennett Federal Emergency Mgmt Agency Department of Homeland Security 500 C Street, S.W., Rm. 840 Washington, D.C Acting FOIA Chief Fernando Pineiro Office of General Counsel Department of Homeland Security 245 Murray Lane Mail Stop-3650 Washington, D.C FEMA FOIA Office Records Management/Disclosure Branch 1800 S. Bell St., 4th Fl. Mail Stop-3005 Arlington, VA Re: FOIA About Uncollected Emergency Food & Shelter Program Overpavments Dear Mmes. Barber & Gallo, Messrs. Bennett & Pineiro: The Department of Homeland Security (DHS) yesterday published its "High Dollar Overpayments Report for the Quarter Ending March 31, 2012." 1 The report stated that Federal Emergency Management Agency (FEMA) overpayments disbursed via its Emergency Food & Shelter Program (EFSP) in the amount of$362, had been outstanding for 137 days as of March 31, The report further stated that no collection action was underway with respect to the $362, improperly paid by EFSP because FEMA was unclear as to the legality of recovering such funds. Hence, pursuant to the Freedom oflnformation Act (FOIA), 5 U.S.C. 552, Judicial Watch, Inc., (Judicial Watch) hereby requests that DHS, including its Office of 1 Secretary Janet Napolitano, Dep't of Homeland Sec., Memo for Council of Insp. Gen. for Integrity & Efficiency,."Quarterly High-Dollar Overpayments Report January to March 2012," May 15, 2012, shtm. 425 Third St, SW, Suite 800, Washington, DC Tel: (202) or FAX: (202) info@judicialwatch.org

7 DHS/DHS-IG/DHS-OGC FEMA-OCFOIFEMA-EFSP May 30, 2012 Inspector General (DHS-OIG) and Office of General Counsel (DijS-OGC), as well as FEMA, including its Chief Financial Officer (FEMA-OCFO) and EFSP, each produce the following records within twenty (20) business days: All communications respecting the legality of recovering improper payments of any kind - including overpayments and wrongful payments - disbursed via FEMA's Emergency Food & Shelter Program. The time frame for this request is November 1, 2011 through the present. In placing this request, Judicial Watch directs your attention to President Barack Obama's January 21, 2009 Memorandum concerning the Freedom oflnformation Act which states: All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA... The presumption of discloslire should be applied to all decisions involving FOIA. Freedom of Information Act. Pres. Mero. of January 21, 2009, 74 Fed. Reg The memo further provides that "The Freedom of Information Act should be administered with a clear presumption: In the case of doubt, openness prevails." Nevertheless, if any responsive record or portion thereof is claimed to be exempt from production under FOIA, please provide sufficient identifying information with respect to each allegedly exempt record or portion thereof to allow us to assess the propriety of the claimed exemption. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). In addition, any reasonably segregable portion of a responsive record must be provided, after redaction of any allegedly exempt material. 5 u.s.c. 552(b). Judicial Watch also hereby requests a waiver of both search and duplication fees pursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II) and (a)(4)(a)(iii). Judicial Watch is entitled to a waiver of search fees under 5 U.S.C. 552(a)( 4)(A)(ii)(II) because it is a member of the news media. Cf National Security Archive v. Department of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989)(defining news media within FOIA context). Judicial Watch has also been recognized as a member of the news media in other FOIA litigation. See, e.g., Judicial Watch, Inc. v. US. Department of Justice, 133 F. Supp.2d 52 (D.D.C. 2000); and, Judicial Watch, Inc. v. Department of Defense, 2006 U.S. Dist. LEXIS 44003, *1 (D.D.C. June 28, 2006). Judicial Watch regularly obtains information about the operations and activities of government through FOIA and other means, uses its editorial Pagel of 4

8 DHS/DHS-IG/DHS..OGC FEMA-OCFO/FEMA-EFSP May 30,2012 skills to turn this information into distinct works, and publishes and disseminates these works to the public. It intends to do likewise with the records it receives in response to this request. Judicial Watch also is entitled to a complete waiver of both search fees and duplication fees pursuant to 5 U.S.C. 552(a)(4)(A)(iii). Under this provision, records: shall be :furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester. 5 U.S.C. 552(a)(4)(A)(iii). In addition, if records are not produced within twenty (20) business days, Judicial Watch is entitled to a complete waiver of search and duplication fees under Section 6(b) of the OPEN Government Act of 2007, which amended FOIA at 5 U.S.C. 552 (a)( 4)(A)(viii). Judicial Watch is a 501(c)(3), not-for-profit, educational organization, and, by definition, it has no commercial purpose. Judicial Watch exists to educate the public about the operations and activities of government, as well as to increase public understanding about the importance of ethics and the rule of law in government. The particular records requested herein are sought as part of Judicial Watch's ongoing efforts to document the operations and activities of the federal government and to educate the public about these operations and activities. Once Judicial Watch obtains the requested records, it intends to analyze them and disseminate the results of its analysis, as well as the records themselves, as a special written report. Judicial Watch will also educate the public via radio programs, Judicial Watch's website, and/or newsletter, among other outlets. It also will make the records available to other members of the media or researchers upon request. Judicial Watch has a proven ability to disseminate information obtained through FOIA to the public, as demonstrated by its long-standing and continuing public outreach efforts. Given these circumstances, Judicial Watch is entitled to a public interest fee waiver of both search costs and duplication costs. Nonetheless, in the event our request for a waiver of search and/or duplication costs is denied, Judicial Watch is willing to pay up to $ in search and/or duplication costs. Judicial Watch requests that it be contacted before any such costs are incurred, in order to prioritize search and duplication efforts. Page3of4

9 DHS/DHS-IG/DHS-OGC FEMA-OCFO/FEMA-EFSP May30,2012 In an effort to facilitate record production within the statutory time limit, Judicial Watch is willing to accept documents in electronic format (e.g. mai.pdfs). When necessazy, Judicial Watch will also accept the "rolling production" of documents. Judicial Watch anticipates prompt receipt of the requested documents and a waiver of both search and duplication costs within twenty (20) business ch!.ys. Thank you for your timely compliance with all applicable laws. Page4 of4