DHS’ Process for
Responding to FOIA and
Congressional Requests
July 23, 2020
OIG-20-56
J
uly 23, 2020
DHS OIG HIGHLIGHTS
DHS’ Process for Responding to FOIA and
Congressional Requests
July 23, 2020
Why We
Did This
Review
In response to a request from the
Senate Homeland Security and
Governmental Affairs Committee,
Permanent Subcommittee on
Investigations, we conducted a
review of DHS’ handling of
Freedom of Information Act
(FOIA) requests and
congressional requests directed
to the DHS Office of the
Secretary — specifically, the
DHS Secretary and Deputy
Secretary.
What We
Recommend
This is a descriptive report and
contains no recommendations.
For Further Information:
Contact our Office of Public Affairs at (202) 981-
6000, or email us at
What We Found
DHS outlines its process for responding to FOIA and
congressional requests in internal policy and
procedure documents, which include timeliness goals
(some of which are based on statutory timelines) and
other guidance for searching for, collecting,
processing, and producing responsive materials.
Regarding FOIA requests, while DHS generally met
deadlines for responding to simple FOIA requests, it
did not do so for most complex requests. A
significant increase in requests received, coupled
with resource constraints, limited DHS’ ability to
meet production timelines under FOIA, creating a
litigation risk for the Department. However, despite
the limitations, DHS FOIA response times are better
than the averages across the Federal Government.
Additionally, DHS has not always fully documented
its search efforts, making it difficult for the
Department to defend the reasonableness of the
searches undertaken.
With respect to responding to congressional requests,
DHS has established a timeliness goal of 15 business
days or less. However, we found that, on average, it
took DHS nearly twice as long to provide substantive
responses to Congress, with some requests going
unanswered for up to 450 business days. Further,
DHS redacted personal information in its responses
to congressional committee chairs even when
disclosure of the information was statutorily
permissible.
DHS Response
DHS acknowledged FOIA backlogs remain a problem,
despite increasing the number of requests processed.
DHS stated its process for responding to
congressional requests varies and that its redactions
are appropriate.
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OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
Table of Contents
Introduction.................................................................................................... 2
Background .................................................................................................... 2
Results of Review ............................................................................................ 5
Resource Constraints Have Limited DHS’ Ability to Respond to FOIA
Requests Timely .................................................................................... 6
Components and OCIO Did Not Consistently Complete FOIA Search
Forms to Indicate They Conducted a Reasonable Search ..................... 11
DHS Often Exceeded Its Timeliness Goal When Responding to
Congressional Requests and Redacted Information ............................. 12
Appendixes
Appendix A: Objective, Scope, and Methodology ................................. 17
Appendix B: DHS Comments to the Draft Report ................................. 19
Appendix C: Information Exempt from Disclosure under FOIA ............. 23
Appendix D: DHS Privacy Office FOIA Request Process and DHS
Congressional Request Process ……………………………......................... 24
Appendix E: FOIA Litigated Cases ........................................................ 26
Appendix F: Major Contributors to This Report .................................... 28
Appendix G: Report Distribution ......................................................... .29
Abbreviations
ALJ Administrative Law Judge
DOJ Department of Justice
ESEC External Liaison Team
FOIA Freedom of Information Act
OCIO Office of Chief Information Officer
OGC Office of General Counsel
OIG Office of Inspector General
OLA Office of Legislative Affairs
PSI Permanent Subcommittee on Investigations
SOP Standard Operating Procedure
U.S.C. United States Codes
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OFFICE OF INSPECTOR GENERAL
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Introduction
The Freedom of Information Act (FOIA)
1
and congressional oversight serve to
promote transparency in, and facilitate oversight of, the Federal Government.
Agency responses to these requests provide the public with important
information about their government and play a vital role in our democracy. As
the third largest Federal department, composed of 22 components with various
law enforcement and national security missions, the Department of Homeland
Security and its operations are the subject of intense public and congressional
interest. DHS receives the most FOIA requests of any Federal agency,
2
and
some 86 congressional committees and subcommittees have asserted some
form of jurisdiction or oversight of it.
3
As a result, DHS must ensure it has
processes in place to respond to these requests in a timely and efficient
manner, in compliance with laws, regulations, and internal policies.
In response to a request from the Senate Homeland Security and Governmental
Affairs Committee, Permanent Subcommittee on Investigations, we conducted a
review of DHS’ handling of FOIA requests and congressional requests directed
to the DHS Office of the Secretary — specifically, the DHS Secretary and
Deputy Secretary.
4
Background
The DHS Privacy Office handles FOIA requests directed to the DHS Secretary
and Deputy Secretary; requests directed to the DHS Secretary and Deputy
Secretary by Members of Congress and congressional committees are handled
by the Office of the Executive Secretary, Communications and Operations,
External Liaison Team, as shown in figure 1.
1
5 United States Code (U.S.C.) § 552 (2006 & Supp. IV 2010)
2
Department of Justice Summary of Annual FOIA Reports for Fiscal Year 2019 states that
DHS received 47 percent of all FOIA requests to the Federal government, nearly 200,000 more
than the Federal agency that received the second most requests.
3
On September 4, 2007, then DHS Secretary Michael Chertoff sent a letter to U.S.
Representative Peter King providing a list of 86 committees and subcommittees that claim
jurisdiction over DHS.
4
Our review did not include requests sent directly to DHS components.
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Figure 1: Simplified DHS Office of the Secretary Organizational Chart
Source: Office of Inspector General (OIG) based on DHS organizational charts
Requests for Information under FOIA
Congress enacted FOIA to give the public access to information in the Federal
Government. The Supreme Court has explained that “[t]he basic purpose of
FOIA is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors
accountable to the governed.”
5
In furtherance of this purpose, the Act requires
Federal executive branch agencies, such as DHS and its components, to
respond to a request within 20 business days, and to disclose responsive
records unless such records are protected from disclosure by one or more
enumerated exemptions.
6
If an agency fails to respond to a request within the allotted time, the requester
may file a lawsuit in Federal court. If a requester is unsatisfied with the
agency’s initial response to the request, the requester must first file an appeal
with the agency before seeking relief in Federal court. At DHS, if a requester
appeals the initial response, the matter is referred to an Administrative Law
5
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)
6
5 U.S.C. § 552(b). Appendix C provides information on the nine FOIA exemptions.
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OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
Judge (ALJ) from the United States Coast Guard, who adjudicates all such
appeals by conducting an independent review of the request and response and
issuing a decision to the requester.
7
FOIA requires decisions on appeals be
issued within 20 business days.
8
If the appeal is not favorable to the
requester, or takes longer than 20 business days to decide,
9
the requester may
file a lawsuit in Federal court.
10
At DHS, the FOIA Operations and Management Team (FOIA Team) within the
Privacy Office processes FOIA requests submitted to the Privacy Office and 14
other DHS Headquarters offices.
11
To process and respond to requests, the
FOIA Team takes the steps detailed in appendix D. The FOIA Team is also
responsible for providing regulatory and policy guidance to DHS on compliance
with FOIA.
12
Generally, the FOIA Team’s guidance reiterates Department of
Justice (DOJ) Office of Information Policy’s guidance and information from the
FOIA.gov website.
Requests for Information from Congress
Congress enjoys broad authority to obtain information. Although there is no
express provision of the Constitution or specific statute authorizing the
conduct of congressional oversight or investigations, the Supreme Court has
established that such power is essential to the legislative function.
13
7
The ALJ’s independent review includes review of the entire administrative file before the
agency at the time of the determination, including (if applicable) any correspondence between
the agency and the requester (e.g., narrowing the scope of the request), the search conducted
by the agency, the search results, the FOIA exemptions applied by the agency, and the final
agency response.
8
5 U.S.C. § 552(a)(6)(A)(ii)
9
5 U.S.C. § 552(a)(6)(A)
10
5 U.S.C. § 552(a)(4)(B)
11
The 14 other DHS Headquarters offices are: Countering Weapons of Mass Destruction Office;
Management Directorate; Military Advisor’s Office; Office for Civil Rights and Civil Liberties;
Office of Health Affairs; Office of Legislative Affairs; Office of Operations Coordination; Office of
Partnership and Engagement; Office of Public Affairs; Office of Strategy, Policy, and Plans;
Office of the Citizenship and Immigration Services Ombudsman; Office of the Executive
Secretary; Office of the General Counsel; and Office of the Secretary.
12
DHS Policy Directive 262-11: Freedom of Information Act Compliance
13
Watkins v. United States, 354 U.S. 178, 187 (1957) (emphasizing the “...power of the
Congress to conduct investigations is inherent in the legislative process. That power is broad.
It encompasses inquiries concerning the administration of existing laws as well as proposed or
possibly needed statutes.”); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504
(1975) (stating the scope of Congress’ power of inquiry is as penetrating and far-reaching as the
potential power to enact and appropriate under the Constitution).
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OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
Within DHS, the External Liaison Team (ESEC)
14
in the Office of the Executive
Secretary’s Communications and Operations group manages external
correspondence addressed to the Secretary and Deputy Secretary, including
congressional correspondence. The Office of Legislative Affairs (OLA) receives
the congressional correspondence and sends it to ESEC to coordinate the
response. If the response involves information from one or more DHS
components, ESEC tasks the appropriate component(s) for a response. The
component drafts the response, acquires all necessary internal clearances,
15
and sends the response back to ESEC to coordinate clearance within DHS.
16
Once the component or ESEC has prepared a response, ESEC acquires
clearances with DHS’ Office of Management, Office of Policy,
17
OLA, and Office
of General Counsel (OGC). ESEC then packages the response for signature.
ESEC’s internal policy provides 5 to 15 business days to respond to
congressional requests, depending on whether a request is deemed “urgent” or
“routine.” If a component head is to provide the response, the component
releases the cleared response to Congress. If the Secretary or Deputy Secretary
is to provide the response, DHS OLA releases the cleared response to Congress.
Appendix D includes a flowchart showing this process.
Results of Review
While DHS generally met statutory deadlines for responding to simple FOIA
requests, it did not do so for most complex requests.
18
The FOIA Team
experienced significant increases in the number of requests received but FOIA
Team managers said they have limited staff to handle the volume, making it
difficult to meet the 20-business-day requirement. In addition, the FOIA Team
processed requests for 14 other DHS Headquarters offices, but did not track
and could not easily identify the number of requests it processes for each office
14
We use “ESEC” to refer to the External Liaison Team for the purposes of this report.
15
Clearance is the process by which relevant staff and senior leadership reviews and concurs
with materials intended for release.
16
In comments to our draft report, DHS stated that ESEC receives congressional
correspondence through several sources, such as DHS components or external stakeholders,
and via other means, such as email or United States Postal Service, not just through OLA. In
addition, DHS clarified that the component, not ESEC, coordinates clearance with DHS’ Office
of Management, Office of Strategy, Policy, and Plans, Office of Legislative Affairs (OLA), and
General Counsel (OGC) prior to sending the response back to ESEC. Because these changes
appear to post-date our fieldwork, we are unable to independently verify them.
17
The Office of Policy has since been renamed the Office of Strategy, Policy, and Plans.
18
A simple request is a FOIA request that an agency anticipates will involve a small volume of
material or can be processed relatively quickly. A complex request typically seeks a high
volume of material or requires additional steps to process, such as the need to search for
records in multiple locations. See https://www.foia.gov/glossary.html.
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OFFICE OF INSPECTOR GENERAL
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so it could seek reimbursement. The FOIA Team also did not have sufficient
electronic storage space to receive and process all responsive documents,
which delayed several FOIA responses, in many cases by more than a year.
Additionally, although reliant on DHS components and the Office of Chief
Information Officer (OCIO) to conduct searches and document the methods
used to complete those searches, the FOIA Team did not consistently receive
completed search forms to indicate a reasonable search was conducted.
However, despite the limitations and as set forth below, DHS FOIA response
times are better than the averages across the Federal Government.
When responding to congressional requests, we found DHS often exceeded its
timeliness goals and did not consistently provide interim responses. Further,
DHS redacted personal information in its responses to congressional committee
chairs that was eligible for release under DHS policy.
Resource Constraints Have Limited DHS’ Ability to Respond to
FOIA Requests Timely
Past and current resource limitations have delayed DHS responses to FOIA
requests. The FOIA Team has faced challenges in timely processing due to a
sharp increase in requests in fiscal years 2017 and 2018, and limited staff to
handle the number of requests they receive. The FOIA Team also processes
requests for 14 other DHS Headquarters offices, which increases the workload.
However, the FOIA Team does not track and cannot easily identify the number
of FOIA requests it processes for each office. As a result, it does not exercise its
ability to seek reimbursement from the offices for the services it provides. We
also found several FOIA responses had been delayed, in many cases by more
than a year, because the FOIA Team did not have sufficient electronic storage
space to accommodate the responsive emails.
Limited Staffing and Increases in FOIA Requests Hindered the FOIA
Team’s Ability to Meet Statutory Response Timeframes
According to FOIA, an agency must release records within 20 business days;
however, with written notice to the requester, an agency may automatically
extend the timeframe by an additional 10 business days for complex requests
requiring the agency to:
x search for and collect requested records held by an office different than
the one processing the request;
x examine a voluminous amount of records; or
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Department of Homeland Security
x consult with other agencies with a substantial interest in the
determination of the request.
19
Even with the 10-day extension, the DHS FOIA Team consistently did not meet
the statutory response time for complex requests for FYs 2013 to 2018. The
FOIA Team took an average of 85 days to process complex requests during this
period, peaking at an average of 99 days in FY 2018. Nevertheless, the DHS
FOIA Team’s processing averages have been consistently lower than the
averages across the Federal Government (figure 2).
Figure 2: Average Business Days for FOIA Team to Respond to FOIA
Requests Compared to Federal-wide*, FYs 2013–2018
16
5
8
7
4
8
63
82
79
88
96
99
21
21
23
28
28
26
123
119
122
128
0
20
40
60
80
100
120
140
FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018
Privacy Office: Simple Privacy Office: Complex
Fed-Wide: Simple Fed-Wide: Complex
Source: OIG analysis of FOIA.gov data
* DOJ, Summary of Annual FOIA Reports for Fiscal Year 2016. DOJ did not report the average
number of days for complex requests in its FY 2017 or FY 2018 reports, and we could not
calculate it based on available data.
When Federal agencies do not respond to FOIA requests within statutory
timeframes, a requester may file suit against the agency. We reviewed all 62
litigation cases the FOIA Team had from October 2014 to May 2018
20
and
determined in the majority of cases, 49 of 62 FOIA requesters (79 percent)
alleged lack of timeliness as the reason for litigation.
21
These requesters waited
23 to 478 business days from when they submitted the initial FOIA request to
when they filed the litigation. The reasons for litigation in the remaining 13
19
5 U.S.C. § 552(a)(6)(B)
20
The FOIA Team tracks litigation cases against its office and the 14 DHS Headquarters offices
for which it processes FOIA requests.
21
See appendix E for all 62 litigated cases.
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OFFICE OF INSPECTOR GENERAL
Department of Homeland Security
cases included challenges to the adequacy of the searches performed,
application of exemptions, and failure to approve expedited processing.
According to FOIA Team managers, they do not have enough staff to handle the
number of FOIA requests they receive, which increased 125 percent in FY
2017, resulting in difficulty meeting the 20-business-day requirement. FOIA
Team managers have requested additional staff, but the FOIA Team does not
have its own line item in DHS’ budget; rather, they receive funds from the
Privacy Office. According to the Deputy Chief FOIA Officer, since FY 2017, he
has been able to hire contractors with funds available from the attrition of
Federal employees and funds received from components for their use of
FOIAXpress, the system used by DHS to track FOIA requests. Despite these
efforts, the total number of staff has not increased at a rate commensurate
with the increase in FOIA requests received, as shown in table 1.
Table 1: Total FOIA Requests Received and Total Full-Time and Full-Time
Equivalent FOIA Staff, FYs 2013–2018
Fiscal Year Number of FOIA
Requests Received
Full-Time and Full-Time
Equivalent FOIA Staff
2013 798 16
2014 705 17
2015 649 18.6
2016 599 16.58
2017 1,348 19.25
2018 1,448 25
Source: OIG analysis of FOIA.gov data
Based on this data, between FYs 2013 and 2016, the average ratio of FOIA staff
members to FOIA requests was approximately 1:40; for FYs 2017 and 2018,
that ratio was 1:64.
The FOIA Team Did Not Track and Seek Reimbursement for Work
Performed on Behalf of 14 Other DHS Headquarters Offices
In addition to processing FOIA requests the Privacy Office receives, the FOIA
Team also processes requests for 14 other DHS Headquarters offices. The
FOIA Team is authorized to receive reimbursement for this work from the other
offices, but does not do so, in part because it does not track and cannot easily
identify the number of FOIA requests it processes for each office.
According to Office of Management and Budget, Circular A-11, Preparation,
Submission, and Execution of the Budget, agencies can perform reimbursable
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work for other agencies under the Economy Act.
22
The Economy Act authorizes
the head of a major organizational unit to place an order with another major
organizational unit within the same agency for services.
23
The service-
providing unit — the FOIA Team, in this case — can charge the ordering units
— the 14 DHS Headquarters offices — the actual cost of the services provided.
To receive reimbursement for the FOIA requests it processes for the 14 other
DHS Headquarters offices, the FOIA Team would need to identify the costs
associated with processing the requests. However, the FOIA Team does not
track requests processed for the individual offices, and instead categorizes all
requests it processes as a “Privacy Office” request in FOIAXpress. As a result,
to identify the specific DHS Headquarters office for which a particular request
was processed, the FOIA Team needs to open each Privacy Office request
individually, which is labor intensive and inefficient. Consequently, the FOIA
Team does not calculate the cost of the services it provides to each office and
has not sought the reimbursement it might otherwise collect to address some
of its resource limitations.
24
DHS Did Not Allot Sufficient Electronic Storage Space to Handle Its FOIA
Processing Needs
FOIA states that in responding to a request for records, “[a]n agency shall make
reasonable efforts to search for the records in electronic form or format....”
25
The DHS FOIA Team relies on OCIO to search for and collect emails responsive
to FOIA requests.
26
Although OCIO completes these searches, in the past the
FOIA Team lacked the necessary electronic storage space to receive all
responses, which delayed the processing of these FOIA requests.
Until September 2018, when OCIO completed a search in response to a FOIA
request, it informed the FOIA Team of the aggregate file size of the collected
responsive emails, at which point the FOIA Team would determine whether it
had the storage capacity on its server to receive the responsive emails. In
22
Office of Management and Budget Circular A-11, Preparation, Submission, and Execution of
the Budget, 20.12, June 2019
23
31 U.S.C. § 1535
24
Although providing no monetary reimbursement, two offices have assigned a staff member
each to assist in processing FOIA requests and alleviate some of the FOIA Team’s workload.
25
5 U.S.C. § 552(a)(3)(C)
26
DHS Policy Directive 141-01, Records and Information Management, (August 11, 2014)
established the policy for managing such records, requiring OCIO “…provide for the seamless
capture and storage of electronic records and associated metadata in DHS enterprise–wide
systems and applications.”
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OFFICE OF INSPECTOR GENERAL
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September 2018, however, the FOIA Team reached capacity on its server
27
and
could not take additional responsive emails from OCIO, including eight pending
transfers as shown in table 2, until the FOIA Team created additional space by
expanding its server capacity or deleting records already provided to
requesters. Because the FOIA Team did not have sufficient electronic storage
space to receive the responsive emails, the emails stayed in OCIO instead of
being processed and produced to the FOIA requester. As the data in table 2
shows, without adequate server capacity to receive responsive emails from
OCIO, the FOIA Team exceeded statutory deadlines in many instances by more
than 200 business days.
Table 2: Pending Transfers from OCIO, as of September 25, 2018
Date of Request Size of File Elapsed Business Days
June 23, 2017 40 GB 316
June 29, 2017 36 GB 312
July 5, 2017 48 GB 309
July 19, 2017 64 GB 299
September 5, 2017 7 GB 266
October 13, 2017 25.4 GB 239
December 4, 2017 44 GB 205
January 31, 2018 37.3 GB 166
Source: OIG analysis of OCIO data and discussions with FOIA Team personnel
Despite the absence of adequate server space, the FOIA Team took some steps
to try to make progress on these FOIA requests. For instance, in one case, the
FOIA Team worked with the requester and OCIO over several months to narrow
the scope of the request until the volume of responsive emails was small
enough to fit on the FOIA Team’s server.
As of August 2019, the FOIA Team upgraded its servers and was able to add
additional electronic storage space. According to a Privacy Office official, the
FOIA Team is no longer having issues accepting responsive emails from OCIO.
The Deputy Chief FOIA Officer said there are plans to move the FOIA Team’s
server to a cloud-based system by March 2020, which would further mitigate
the storage capacity issue.
27
The FOIA Team’s server capacity was six terabytes (TB) as of September 25, 2018. One TB is
equal to 1,000 gigabytes (GB). The FOIA Team updated the server capacity to 10.5 TB as of
August 8, 2019.
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Components and OCIO Did Not Consistently Complete FOIA
Search Forms to Indicate They Conducted a Reasonable Search
When responding to a FOIA request, a Federal agency must conduct a
reasonable search for responsive documents.
28
DOJ’s Guide to the Freedom of
Information Act – Procedural Requirements specifies:
As a general rule, courts require agencies to undertake a search
that is ‘reasonably calculated to uncover all relevant documents.’
… the adequacy of a FOIA search is generally determined not by
the fruits of the search, but by the appropriateness of the methods
used to carry out the search.
29
Appeals filed by requesters often cite concerns with the reasonableness of an
agency’s search. Documenting the search methods used to identify and collect
documents responsive to a FOIA request provides the agency with critical
information needed to establish the reasonableness of the search.
Because the FOIA Team lacks access to all DHS systems and the knowledge
needed to run comprehensive searches within these systems, it must rely on
DHS components and OCIO to conduct searches and document the methods
used. According to the FOIA Team’s draft SOP, the FOIA Team provides a
search form to be completed and returned when it tasks DHS components and
OCIO to search for relevant records. The form sent to the components requests
information about how the search was conducted, including the locations
searched (e.g., paper files, electronic databases, desktop computers, shared
drives, and thumb drives), search terms used, time spent searching, whether
any records were found, and if the component recommends withholding
information. The form sent to OCIO specifies what key words, email accounts,
and relevant date ranges to search.
The Director of Compliance and Oversight said that, even when components
send back responsive documents, they do not always return a completed form
detailing their search methods. Additionally, OCIO sends the FOIA Team an
email stating whether it found responsive emails and the size of the data set
rather than returning the search form, which specifies key words, email
accounts, and date ranges searched. We analyzed six FOIA requests tasked to
28
Valencia-Lucena v. United States Coast Guard, FOIA/PA Records Mgmt., 180 F.3d 321, 325
(D.C. Cir. 1999) (citations omitted). See also Ancient Coin Collectors Guild v. United States Dep't
of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (“An agency is required to perform more than a
perfunctory search in response to a FOIA request.”)
29
DOJ, Guide to the Freedom of Information Act – Procedural Requirements, October 12, 2018
(internal quotations and citations omitted)
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DHS components, and three to OCIO. Of these nine FOIA requests, only three
(by a DHS component) returned a completed search form. In three cases, the
FOIA Team did not provide the search form when tasking the FOIA request to
the component or OCIO.
Additionally, the FOIA Team’s previous search form required the searcher to
certify he or she had conducted a reasonable search, but the current iteration
of the form does not require this certification. Since dispensing with this
requirement, neither component nor OCIO staff provide contemporaneous
certification of the reasonableness of their search.
At least half of the 60 appeal cases we reviewed challenged the adequacy of
DHS’ search. The returned search forms can be important evidence to show
DHS conducted a reasonable search. In fact, DHS has used completed search
forms and accompanying certification statements as evidence in appeals and
litigation to prove its use of appropriate methods to search for responsive
documents. Without this evidence, DHS may be placed at a disadvantage in
such litigation.
DHS Often Exceeded Its Timeliness Goal When Responding to
Congressional Requests and Redacted Information Eligible for
Release under DHS Policy
In addition to reviewing how DHS responds to FOIA requests, we sought to
determine how DHS responds to congressional requests. Unlike FOIA, DHS
does not have legal requirements dictating a particular process to follow when
responding to congressional requests; rather, DHS has developed and relies on
internal standard operating procedures (SOP) and guidance. We found DHS
exceeded its own timeliness goal for responding to congressional requests 49
percent of the time, sometimes by more than 450 business days. In some
instances when DHS exceeded its timeliness goal, it did not provide any form of
interim response. We also found DHS redacted personal information from
responses to congressional committee chairs that was eligible for release under
DHS policy.
DHS Took an Average of Almost 27 Business Days to Respond to
Congressional Requests
The DHS ESEC Executive Correspondence Handbook specifies policies and
procedures for all DHS correspondence, including correspondence with
Congress, and stresses: “In support of the Secretary’s commitment to being
responsive, the Department-wide standard is to transmit a timely response.”
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ESEC’s timeliness goal ranges from providing a response within 5 and 15
business days.
To determine whether DHS Headquarters is providing substantive responses to
congressional requests — i.e., beyond merely confirming receipt of
correspondence or providing non-substantive interim responses — consistent
with its own time goal, we analyzed data on all 2,894 congressional letters
received from October 2014 to June 2018. DHS had issued a final response to
2,832 of those letters (closed letters); 62 letters remained open. We analyzed
the closed letters and determined ESEC did not meet its response time goal of
15 or fewer business days 49 percent of the time (1,383 of 2,832 closed letters),
as shown in figure 3. On average, ESEC took almost 27 business days in that
period to close a congressional letter, with some responses going out within 1
business day, while at least one response took longer than 450 business days
to issue.
Figure 3: Timeliness of DHS Closing Congressional Letters in Business
Days, October 2014 to June 2018
51%
21%
17%
8%
2%
1%
0
200
400
600
800
1,000
1,200
1,400
1,600
15 days or
less
16 to 30
days
31 to 60
days
61 to 100
days
101 to 200
days
201 or
more days
Source: OIG analysis of ESEC data
According to the ESEC Executive Correspondence Handbook, if components
expect to exceed the timeliness goal when preparing and clearing a response to
a congressional request, components should periodically provide an interim
response. Our analysis of 30 congressional letters older than 60 business days
indicated 12 did not receive an interim letter. Seven of the 12 requests did not
receive any update — whether orally or in writing — regarding the status of the
request, meaning 7 requesters heard nothing from DHS for at least 60 days
after sending a request. ESEC staff said components do not need to provide an
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interim response, but the Executive Correspondence Handbook suggests doing
so and includes an interim response template as an appendix.
ESEC and component staff told us the scope of the congressional request, the
volume of documents requested, and the review process affect how quickly they
can respond. Depending on the information requested, DHS seeks clearance
from DHS’ Office of Management, Office of Strategy, Policy, and Plans, OLA,
OGC, its components, and outside agencies before release. Additionally,
requests for alien files can take longer to process because they contain
personal information and can include sensitive case information, which involve
clearance from multiple DHS components and, in some cases, DOJ.
30
For
example, DHS received a request from a congressional subcommittee for the
alien files for five individuals.
31
Roughly 3 months later, OLA informed a
subcommittee staff member the files had been reviewed by DHS, but were with
DOJ for its review. DHS ultimately provided the files, with redactions, to the
subcommittee 5 months after receiving the initial request.
DHS Redacted Information in Response to Requests from Congressional
Committee Chairs Although It Was Eligible for Release under DHS Policy
DHS may withhold or redact information requested by Congress based on a
variety of constitutional principles, common law privileges, and statutory
exemptions.
32
We did not review the legal sufficiency of DHS’ justifications in
withholding or redacting information requested by Congress, though we did
examine whether withholdings or redactions were done in accordance with
DHS’ own policies.
The OLA SOP states personally identifiable information “can be provided
following a written request from a committee or subcommittee chairman.”
Further, the ESEC Executive Correspondence Handbook, includes a call-out
text box stating,
Privacy releases are required to release an individual’s personal
information to a third party — unless the Chairperson of a
congressional committee is requesting the information in their
official capacity.
30
If an alien is under investigation by the Federal Bureau of Investigation, then DOJ will have
to clear the file as well.
31
An alien file contains personal information on non-U.S. citizens, including name, date of
birth, place of birth, photographs, application information, affidavits, correspondence, and
more, and can be hundreds of pages.
32
Other limitations include Executive privilege, the Privacy Act, pending litigation, and
classified and sensitive materials.
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Despite the guidance allowing release to congressional committee chairs, we
found DHS redacted personal information in materials (e.g., personnel and
case files) responsive to requests made by committee chairs in their official
capacity. We analyzed 30 such letters older than 60 business days and found
DHS issued a response to 28 of the 30 letters.
33
Of those 28 responses, 6
included some redacted information appearing to be personal information that
was eligible for release per DHS’ guidance. DHS did not provide the basis for
withholding in any of the six responses to the committee chairpersons.
The OGC staff we interviewed stated congressional committees are not allowed
to receive “any and all” documents unredacted, and DHS redacts information
even if it is going to a chairperson. OGC staff also told us DHS does not
provide reasons for redactions in the response unless asked, stating it would
“take too long.” Further, component staff we spoke to said they never send
unredacted alien files or provide reasons for redactions. When withholding is
not required by law and disclosure is permitted under DHS’ own guidance, the
absence of explanation regarding particular redactions can create confusion
about the basis for, and legitimacy of, the redactions.
Conclusion
DHS has a responsibility to respond to FOIA and congressional requests
consistent with laws, regulations, and internal policies. Our review found DHS
struggles in the execution of that responsibility. Specifically, DHS has had
difficulty meeting FOIA production timelines and does not fully document its
FOIA search efforts, resulting in litigation risk. Similarly, DHS has struggled to
respond to congressional requests in accordance with internal timeliness goals,
meeting its response time goal slightly more than half of the time, with some
requests going unanswered for more than a year. To promote transparency
and facilitate oversight, DHS must ensure it has processes in place to respond
to these requests in a timely and efficient manner.
OIG Analysis of Management Comments
We included a copy of DHS’ management comments in their entirety in
appendix B. We also received technical comments and incorporated them in
the report where appropriate. A summary of DHS’s response and our analysis
follows.
33
We analyzed a judgmental sample (30 out of 2,896) of congressional letters.
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In its response, DHS management noted that it holds a large volume of records,
including immigration records and DHS policies, which are of great interest to
the general public, the news media, and Congress. DHS management
explained that its FOIA backlog continues to be a systematic problem for DHS
but initiated its “DHS 2020 - 2023 FOIA Backlog Reduction Plan” in March
2020 to reduce the backlog. DHS management asserted that this report did
not take into account certain complicating factors that can impact DHS’
response to a congressional inquiry, including the report’s discussion of
interim responses and applying redactions.
We appreciate the efforts DHS made in providing their technical comments.
We modified the report accordingly where appropriate. Specifically, we updated
flowcharts and made minor revisions to the report to enhance clarity and
ensure accuracy. We commend DHS for proactively creating its FOIA backlog
reduction plan in March 2020 to address an issue we identified in the report.
We also appreciate DHS’ comments regarding its responses to congressional
inquiries and acknowledge DHS’ assertion that complicated factors are involved
in providing responses to congressional requests. However, as outlined in
appendix A, OIG gathered the information it relied upon for this report through
interviews with key personnel, DHS policies and procedures provided by the
DHS offices subject to this review, and a review of the underlying data for FOIA
and congressional responses. OIG attests to the accuracy of this report in
conformity with the values of the independence of this office.
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Appendix A
Objective, Scope, and Methodology
Department of Homeland Security Office of Inspector General was established
by the Homeland Security Act of 2002 (Public Law 107ï296) by amendment to
the Inspector General Act of 1978.
We conducted this inspection in response to a congressional request from the
Senate Homeland Security and Governmental Affairs Committee, Permanent
Subcommittee on Investigations to determine how DHS Headquarters is
responding (1) to FOIA requests and (2) to congressional requests.
To determine whether the FOIA Team within DHS Headquarters is complying
with Federal requirements when responding to FOIA requests, we obtained an
extract of all FOIA requests from October 2014 to May 2018. Of these, we
obtained samples of (1) search forms used for initial FOIA requests and
analyzed the completeness of the forms; (2) FOIA cases that were subject to
appeal and analyzed the adequacy of the response; and (3) all FOIA litigated
cases to determine the reasons for litigation. We also analyzed data available
on FOIA.gov. Further, we reviewed DHS and component policies and
procedures for responding to FOIA requests.
We interviewed personnel from the FOIA Team, including the Deputy Chief
FOIA Officer, directors, and processors on the FOIA Team. We interviewed
component FOIA directors from the United States Secret Service, U.S. Customs
and Border Protection, U.S. Immigration and Customs Enforcement, the
Federal Emergency Management Agency, the Transportation Security
Administration, and the Office of Civil Rights and Civil Liberties. We also
interviewed the Data Acquisition Manager at OCIO responsible for searching for
responsive emails.
To determine whether ESEC is responding to congressional requests we
obtained a sample of all congressional letters from October 2014 to May 2018.
We analyzed what was requested, how long it took DHS to respond, if DHS
provided an interim response, and what responsive documents DHS provided.
Further, we reviewed DHS and component policies and procedures for
responding to congressional requests.
We interviewed DHS Headquarters and component staff responsible for
overseeing and responding to congressional requests. Specifically, we
interviewed personnel at DHS ESEC, OLA, and OGC. We also interviewed
component personnel responsible for responding to congressional requests at
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U.S. Immigration and Customs Enforcement, U.S. Customs and Border
Protection, and the U.S. Citizenship and Immigration Services.
We conducted fieldwork for this review between May and November 2018
pursuant to the authority of the Inspector General Act of 1978, as amended.
This report was prepared according to the Quality Standards for Federal Offices
of Inspector General issued by the Council of the Inspectors General on
Integrity and Efficiency.
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Appendix C
Information Exempt from Disclosure under FOIA
Exemption
Number
Matters that are exempt from FOIA
(1) (A) Specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to the Executive
Order.
(2) Related solely to the internal personnel rules and practices of an agency.
(3) Specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute:
(A) requires that matters be withheld from the public in such a manner
as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular
types of matters to be withheld, and
(C) if enacted after October 28, 2009, specifically refers to section
552(b)(3) of Title 5, United States Code.
(4) Trade secrets and commercial or financial information obtained from a
person and privileged or confidential.
(5) Interagency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the
agency.
(6) Personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.
(7) Records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or
information:
(A) could reasonably be expected to interfere with enforcement proceedings;
(B) would deprive a person of a right to a fair trial or impartial adjudication;
(C) could reasonably be expected to constitute an unwarranted invasion of
personal privacy;
(D) could reasonably be expected to disclose the identity of a confidential
source, including a state, local, or foreign agency or authority or any
private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by a criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation,
information furnished by confidential source;
(E) would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(F) could reasonably be expected to endanger the life or physical safety of an
individual.
(8) Contained in or related to examination, operating, or condition of reports
prepared by, on behalf of, or for the use of an agency responsible for the
regulation of supervision of financial institutions.
(9) Geological and geophysical information and data, including maps,
concerning wells.
Source: 5 U.S.C. § 552(b)(1) through (b)(9)
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Appendix E
FOIA Litigated Cases
Cases Elapsed Business Days* Reason for Litigation
1 9 Failure to approve expedited processing
2 23 Timeliness
3 23 Timeliness
4 25 Timeliness
5 32 Timeliness
6 40 Timeliness
7 40 Inadequate Search
8 41 Timeliness
9 41 Timeliness
10 41 Timeliness
11 42 Timeliness
12 42 Timeliness
13 42 Timeliness
14 43 Timeliness
15 48 Timeliness
16 49 Timeliness
17 53 Timeliness
18 54 Inadequate Search
19 57 Timeliness
20 57 Timeliness
21 63 Timeliness
22 64 Timeliness
23 65 Timeliness
24 67 Timeliness
25 71 Timeliness
26 75 Inadequate Search
27 78 Timeliness
28 79 Timeliness
29 79 Timeliness
30 79 Timeliness
31 81 Timeliness
32 86 Timeliness
33 89 Timeliness
34 90 Timeliness
35 102 Inadequate Search
36 117 Timeliness; Inadequate Search
37 130 Timeliness
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38 131 Timeliness
39 133 Timeliness
40 140 Timeliness
41 158 Timeliness
42 161 Timeliness
43 182 Timeliness
44 185 Timeliness
45 187 Exemptions
46 189 Timeliness
47 195 Timeliness
48 196 Timeliness
49 209 Timeliness
50 220 Inadequate Search
51 233 Exemptions
52 252 Timeliness
53 256 Timeliness
54 276 Timeliness
55 281 Exemptions
56 285 Timeliness
57 312 Exemptions
58 373 Timeliness
59 383 Timeliness
60 414 Timeliness
61 441 Inadequate Search
62 478 Timeliness; Exemptions
Source: OIG analysis of FOIA Team data
*We calculated elapsed business days based on the date the requester submitted the FOIA
request and the date the litigation was filed.
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Appendix F
Office of Special Reviews and Evaluations Major Contributors
to This Report
Tatyana Martell, Chief Inspector
Carie Mellies, Lead Inspector
Ian Stumpf, Inspector
Avery Roselle, Attorney Advisor
Paul Lewandowski, Independent Referencer
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Appendix G
Report Distribution
Department of Homeland Security
Secretary
Deputy Secretary
Chief of Staff
Deputy Chiefs of Staff
General Counsel
Executive Secretary
Director, GAO/OIG Liaison Office
Assistant Secretary for Office for Strategy, Policy, and Plans
Assistant Secretary for Office of Public Affairs
Assistant Secretary for Office of Legislative Affairs
Privacy Office Liaison
Office of Management and Budget
Chief, Homeland Security Branch
DHS OIG Budget Examiner
Congress
Congressional Oversight and Appropriations Committees
Senate Homeland Security and Governmental Affairs Committee Permanent
Subcommittee on Investigations
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Additional Information and Copies
To view this and any of our other reports, please visit our website at:
www.oig.dhs.gov.
For further information or questions, please contact Office of Inspector General
Public Affairs at: [email protected].
Follow us on Twitter at: @dhsoig.
OIG Hotline
To report fraud, waste, or abuse, visit our website at www.oig.dhs.gov and click
on the red "Hotline" tab. If you cannot access our website, call our hotline at
(800) 323-8603, fax our hotline at (202) 254-4297, or write to us at:
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Attention: Hotline
245 Murray Drive, SW
Washington, DC 20528-0305
