Testimony of Mary Ellen Callahan, Chief FOIA Officer and Chief Privacy Officer, Privacy Office, Before the United States House of Representatives Committee on Oversight and Government Reform on "Why Isn't The Department of Homeland Security Meeting The President's Standard on FOIA?"
Release Date:
March 31, 2011
Rayburn House Office Building
Good morning Chairman Issa, Ranking Member Cummings, and distinguished Members of the Committee. My name is Mary Ellen Callahan. I am the Chief FOIA Officer and Chief Privacy Officer at the Department of Homeland Security. My office administers policies, programs and procedures to ensure that the Department complies with the Freedom of Information Act (FOIA)1 and the Privacy Act,2 respectively. I appreciate the opportunity to appear before you today to discuss the Department of Homeland Security's (DHS) FOIA process and policy both past and present and to clarify misconceptions regarding the Department's significant FOIA review process.
DHS has approximately 420 full time equivalent federal employees devoted to processing FOIA requests, and we take our mission of openness and responsiveness very seriously. As I stated in my written testimony to this committee last year,3 these FOIA professionals have done an extraordinary job in addressing FOIA backlogs as well as engaging in an unprecedented initiative to proactively disclose frequently requested records and items of public interest.
Two years ago, the Department faced a backlog of more than 74,000 FOIA requests. Under this Administration, we have reduced the backlog by 84 percent, or more than 63,000 requests. In fiscal year (FY) 2010 alone, DHS reduced its backlog by 40 percent, eclipsing both the government-wide Open Government Directive's instruction to reduce the FOIA backlog by 10 percent each year, as well as DHS's own Open Government Plan's goal of a 15 percent reduction for the fiscal year. In those past two years, we also reduced the average time it takes to process FOIA requests in our system by 58 percent, from 225 days to 95 days. Remarkably, we have been able to reduce this backlog, and accelerate response times, while processing an incredible number of new FOIA requests. In FY 2010, DHS received 130,098 FOIA requests - more than any other federal department, and 22 percent of all FOIAs received by the federal government - and processed 138,651 requests, also more than any other federal department.
In FY 2010, of those more than 138,000 requests processed, approximately one half of one percent were deemed 'significant' by career FOIA officers according to standards established at the Department in 2006 regarding major FOIA requests that may have a significant public interest. Examples included requests involving significant ongoing litigation, requests relating to sensitive topics, requests made by the media, and requests relating to Presidential or agency priorities. In these relatively few cases, senior Department management was provided an opportunity to become aware of the contents of a release prior to its issuance to the public, primarily to enable them to respond to inquiries from members of Congress and their staffs, the media, and the public and to engage the public on the merits of the underlying policy issues. I am not aware of a single case in which anyone other than a career FOIA professional or an attorney in the Office of the General Counsel made a substantive change to a proposed FOIA release. Further, to my knowledge, no information deemed releasable by the FOIA Office or the Office of the General Counsel has at any point been withheld and responsive documents have neither been abridged nor edited.
The roots of this significant FOIA policy lie not with this Administration, but with its predecessor. Beginning in 2005, the DHS FOIA office began identifying significant FOIA requests pursuant to objective standards4 and providing notice of them to senior Department management in a weekly report. In 2006, submission guidelines for what constituted a ‘significant FOIA' request were officially established by the DHS Privacy Office, and the current Administration has basically followed suit.5
Discussion between the Privacy Office and senior Department management about how to increase awareness of significant documents began after several significant FOIAs were released at the beginning of the new Administration without notice to senior management. These significant FOIA responses related to ongoing litigation, records from the previous Administration, and records from other Departments, among other issues. This basic lack of awareness of significant FOIA responses presented challenges to the Department's ability to effectively respond to inquiries from the media, Congress and the public, inhibiting senior leadership's ability to fulfill its responsibility to manage the Department and to engage the public on merit-based discussions related to the associated policy issues.
As a result, the Department developed a process during the fall of 2009 by which senior Department management were made aware of significant FOIA requests and planned releases. As explained above, the determination of which FOIA releases were deemed significant and thus subject to this awareness process were made by career FOIA officials. While the review period was set at three days, that goal unfortunately was not always met due to the urgency of other priorities and some FOIA releases were delayed. This was particularly true in early 2010, in the wake of the attempted terrorist attack on Christmas Day and other incidents that necessarily drew the attention of senior management away from regular day-to-day activities and deadlines.
In the spring of 2010, recognizing that enhancements to this review process were needed to ensure that the appropriate awareness was provided to senior management in a manner that allowed prompt processing of FOIA requests, Departmental leadership and the Privacy Office collaborated to develop an improved system. Under this improved system, significant FOIA releases are uploaded to an online intranet-hosted, role-based SharePoint site to which senior Department management have read-only access, originally three days in advance of release. This was done in order to allow officials from the Department's offices of Legislative Affairs, Public Affairs, Intergovernmental Affairs, and the Office of the Secretary to review the documents simultaneously, and when inquiries are made. FOIA responses are automatically sent out after the review period has expired, unless one of the reviewers or a FOIA officer identified a problem with the FOIA response. To my knowledge, the identification of inconsistencies or inappropriate redactions or disclosures has occurred only a handful of times in the nine months since the SharePoint notification system was implemented.
To my knowledge, at no point during this awareness review process did anyone other than a career FOIA professional or an attorney in the Office of the General Counsel make a substantive change to a proposed FOIA release or a substantive determination regarding what should be released or redacted. While there is no doubt that this awareness review at times took longer than anticipated, the issue of delay in responding to some FOIA requests must be evaluated in its larger context. Since the implementation of this awareness policy, the average number of days it takes the Department to process a FOIA request has decreased significantly – from 240 to 95 days, a record of which the Department is rightfully proud.
Despite some management challenges in developing this new system, we believe significant progress has been made by establishing the SharePoint site. We have continually tried to improve this process to ensure the Department is as responsible and responsive as possible. We have been and remain mindful of the Attorney General's March 2009 guidance that "open government requires agencies to work proactively and respond to requests promptly" and that "responsibility for effective FOIA administration belongs to all of us—it is not merely a task assigned to an agency's FOIA staff." (emphasis mine)
In fact, we continue to improve the system; DHS has now moved to a one-day awareness review for significant FOIA responses. Substantive determinations regarding application of FOIA law and exemptions will continue to be made by FOIA professionals or attorneys in the Office of the General Counsel.
We are proud of the strides we have made in this effort, but we also acknowledge that there is always room for improvement; we welcome the Committee's suggestions to improve our process. To best facilitate any recommendations from the Committee, let me set forth our current procedure for responding to all FOIA requests:
1. 5 U.S.C. § 552.
2. 5 U.S.C. § 552a.
3. This testimony is available at www.dhs.gov/ynews/testimony/testimony_1301424145007.shtm.
4. All DHS Privacy Office memoranda on significant FOIA requests are available in the DHS FOIA Library at www.dhs.gov/foia.
5. The 2006 Submission Guidelines are available at: www.dhs.gov/xlibrary/assets/foia/priv_foia_cabinet_report_submission_guidelines_20060804.pdf. The 2009 guidelines are available at: www.dhs.gov/xlibrary/assets/foia/priv_cfoiao_memo_cabinet_report_foia_guidelines_20090707.pdf.
The Freedom of Information Act (FOIA) requires agencies to make various types of records available for public inspection in both paper and electronic form. These records are available through this page.
For reports and publications relating to the Department’s mission and strategy, please visit About the Department of Homeland Security, which contains links to many of those documents.
For reports and publications released by Department of Homeland Security components please visit their FOIA pages.
Questions on how to submit a FOIA request? See How to Submit a FOIA Request to the Department of Homeland Security.
FOIA requests must be addressed to component(s) you believe hold the records sought. See Directing Requests to Proper Components.
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Good morning Chairman Issa, Ranking Member Cummings, and distinguished Members of the Committee. My name is Mary Ellen Callahan. I am the Chief FOIA Officer and Chief Privacy Officer at the Department of Homeland Security. My office administers policies, programs and procedures to ensure that the Department complies with the Freedom of Information Act (FOIA)1 and the Privacy Act,2 respectively. I appreciate the opportunity to appear before you today to discuss the Department of Homeland Security's (DHS) FOIA process and policy both past and present and to clarify misconceptions regarding the Department's significant FOIA review process.
DHS has approximately 420 full time equivalent federal employees devoted to processing FOIA requests, and we take our mission of openness and responsiveness very seriously. As I stated in my written testimony to this committee last year,3 these FOIA professionals have done an extraordinary job in addressing FOIA backlogs as well as engaging in an unprecedented initiative to proactively disclose frequently requested records and items of public interest.
Two years ago, the Department faced a backlog of more than 74,000 FOIA requests. Under this Administration, we have reduced the backlog by 84 percent, or more than 63,000 requests. In fiscal year (FY) 2010 alone, DHS reduced its backlog by 40 percent, eclipsing both the government-wide Open Government Directive's instruction to reduce the FOIA backlog by 10 percent each year, as well as DHS's own Open Government Plan's goal of a 15 percent reduction for the fiscal year. In those past two years, we also reduced the average time it takes to process FOIA requests in our system by 58 percent, from 225 days to 95 days. Remarkably, we have been able to reduce this backlog, and accelerate response times, while processing an incredible number of new FOIA requests. In FY 2010, DHS received 130,098 FOIA requests - more than any other federal department, and 22 percent of all FOIAs received by the federal government - and processed 138,651 requests, also more than any other federal department.
In FY 2010, of those more than 138,000 requests processed, approximately one half of one percent were deemed 'significant' by career FOIA officers according to standards established at the Department in 2006 regarding major FOIA requests that may have a significant public interest. Examples included requests involving significant ongoing litigation, requests relating to sensitive topics, requests made by the media, and requests relating to Presidential or agency priorities. In these relatively few cases, senior Department management was provided an opportunity to become aware of the contents of a release prior to its issuance to the public, primarily to enable them to respond to inquiries from members of Congress and their staffs, the media, and the public and to engage the public on the merits of the underlying policy issues. I am not aware of a single case in which anyone other than a career FOIA professional or an attorney in the Office of the General Counsel made a substantive change to a proposed FOIA release. Further, to my knowledge, no information deemed releasable by the FOIA Office or the Office of the General Counsel has at any point been withheld and responsive documents have neither been abridged nor edited.
The roots of this significant FOIA policy lie not with this Administration, but with its predecessor. Beginning in 2005, the DHS FOIA office began identifying significant FOIA requests pursuant to objective standards4 and providing notice of them to senior Department management in a weekly report. In 2006, submission guidelines for what constituted a ‘significant FOIA' request were officially established by the DHS Privacy Office, and the current Administration has basically followed suit.5
Discussion between the Privacy Office and senior Department management about how to increase awareness of significant documents began after several significant FOIAs were released at the beginning of the new Administration without notice to senior management. These significant FOIA responses related to ongoing litigation, records from the previous Administration, and records from other Departments, among other issues. This basic lack of awareness of significant FOIA responses presented challenges to the Department's ability to effectively respond to inquiries from the media, Congress and the public, inhibiting senior leadership's ability to fulfill its responsibility to manage the Department and to engage the public on merit-based discussions related to the associated policy issues.
As a result, the Department developed a process during the fall of 2009 by which senior Department management were made aware of significant FOIA requests and planned releases. As explained above, the determination of which FOIA releases were deemed significant and thus subject to this awareness process were made by career FOIA officials. While the review period was set at three days, that goal unfortunately was not always met due to the urgency of other priorities and some FOIA releases were delayed. This was particularly true in early 2010, in the wake of the attempted terrorist attack on Christmas Day and other incidents that necessarily drew the attention of senior management away from regular day-to-day activities and deadlines.
In the spring of 2010, recognizing that enhancements to this review process were needed to ensure that the appropriate awareness was provided to senior management in a manner that allowed prompt processing of FOIA requests, Departmental leadership and the Privacy Office collaborated to develop an improved system. Under this improved system, significant FOIA releases are uploaded to an online intranet-hosted, role-based SharePoint site to which senior Department management have read-only access, originally three days in advance of release. This was done in order to allow officials from the Department's offices of Legislative Affairs, Public Affairs, Intergovernmental Affairs, and the Office of the Secretary to review the documents simultaneously, and when inquiries are made. FOIA responses are automatically sent out after the review period has expired, unless one of the reviewers or a FOIA officer identified a problem with the FOIA response. To my knowledge, the identification of inconsistencies or inappropriate redactions or disclosures has occurred only a handful of times in the nine months since the SharePoint notification system was implemented.
To my knowledge, at no point during this awareness review process did anyone other than a career FOIA professional or an attorney in the Office of the General Counsel make a substantive change to a proposed FOIA release or a substantive determination regarding what should be released or redacted. While there is no doubt that this awareness review at times took longer than anticipated, the issue of delay in responding to some FOIA requests must be evaluated in its larger context. Since the implementation of this awareness policy, the average number of days it takes the Department to process a FOIA request has decreased significantly – from 240 to 95 days, a record of which the Department is rightfully proud.
Despite some management challenges in developing this new system, we believe significant progress has been made by establishing the SharePoint site. We have continually tried to improve this process to ensure the Department is as responsible and responsive as possible. We have been and remain mindful of the Attorney General's March 2009 guidance that "open government requires agencies to work proactively and respond to requests promptly" and that "responsibility for effective FOIA administration belongs to all of us—it is not merely a task assigned to an agency's FOIA staff." (emphasis mine)
In fact, we continue to improve the system; DHS has now moved to a one-day awareness review for significant FOIA responses. Substantive determinations regarding application of FOIA law and exemptions will continue to be made by FOIA professionals or attorneys in the Office of the General Counsel.
We are proud of the strides we have made in this effort, but we also acknowledge that there is always room for improvement; we welcome the Committee's suggestions to improve our process. To best facilitate any recommendations from the Committee, let me set forth our current procedure for responding to all FOIA requests:
- DHS receives a request for information under the FOIA.
- The request is logged by the relevant component FOIA office, and reviewed for compliance with DHS regulations and to ensure it reasonably describes the records sought (i.e., that it is perfected). If the request is not perfected, the FOIA professional corresponds with the requester to seek clarification of the scope of the request; once the request is perfected, the FOIA professional sends an acknowledgement letter to the requester.
- Career FOIA professionals then determine whether or not the request is significant using criteria and factors that have not changed materially since 2006.
- Information about significant requests, including the actual request letter and a summary, is submitted to my office – the DHS Privacy Office – which consolidates significant requests and reports them to DHS senior management on a weekly basis for awareness.
- The relevant FOIA Office tasks out the request to a component, group or subject matter expert(s) within the Department who may have responsive federal records according to the information requested and the scope covered.
- Federal records from the subject matter experts or identified parties that are responsive to the request are returned to the FOIA Office from which it was tasked.
- Career FOIA professionals review the response and identify appropriate legal exemptions (for law enforcement, national security, privacy and pre-decisional considerations, among other things as defined in the law).
- After the DHS subject matter expert (custodian of the federal records) confirms the final response is appropriate, the FOIA professional then prepares the information for release – including a letter and explanation of various exemptions.
- In many DHS components and offices, attorneys from the Office of the General Counsel review the proposed response prior to release to confirm that all redactions and disclosures are being made appropriately.
- FOIA releases are reviewed and approved by a FOIA manager.
- Non-significant FOIA releases (99.5 percent of releases) are released to the requester. Significant FOIA releases are uploaded into a SharePoint system for a limited awareness review period – now one business day – and then automatically released by the relevant component FOIA office back to the requester.
1. 5 U.S.C. § 552.
2. 5 U.S.C. § 552a.
3. This testimony is available at www.dhs.gov/ynews/testimony/testimony_1301424145007.shtm.
4. All DHS Privacy Office memoranda on significant FOIA requests are available in the DHS FOIA Library at www.dhs.gov/foia.
5. The 2006 Submission Guidelines are available at: www.dhs.gov/xlibrary/assets/foia/priv_foia_cabinet_report_submission_guidelines_20060804.pdf. The 2009 guidelines are available at: www.dhs.gov/xlibrary/assets/foia/priv_cfoiao_memo_cabinet_report_foia_guidelines_20090707.pdf.
Chief Freedom of Information Act Officer Mary Ellen Callahan, Department of Homeland Security Privacy Office, before the House Committee on Oversight and Government Reform, Subcommittee on Information Policy, Census and National Archives, "The Freedom of Information Act and Other Disclosure Initiatives"
Release Date:
March 29, 2011
I
want to thank the subcommittee for holding this hearing during Sunshine
Week. Because my schedule would not allow for me to testify in person
today, I want to thank the committee for the opportunity to submit this
statement for the hearing record. I am extremely proud of what the
Department of Homeland Security has accomplished in making itself more
open and accountable to the public and I look forward to continuing to
make great strides in the future. The following statement outlines a
number of our accomplishments. I would be happy to answer any questions
you have in writing, and hope to have the opportunity to testify before
your subcommittee in the future.
In Attorney General Holder's March 19, 2009 Memorandum on the Freedom of Information Act (FOIA), he stressed that the involvement of the agency Chief FOIA Officer is imperative for improving departmental FOIA programs. Each Chief FOIA Officer is accountable for ensuring his or her agency efficiently and appropriately complies with FOIA, which includes making recommendations to top agency officials regarding any necessary modifications to agency policies, practices, personnel and funding to do so. Those who accept the statutorily mandated role of Chief FOIA Officer must take the obligations associated with the position very seriously.
It is my duty to ensure that the Department of Homeland Security (DHS) embraces the Administration's presumption of openness, and our disclosure program has instituted definitive measures to mandate proactive record posting, adopt the "foreseeable harm" standard, and reduce the DHS request backlog. Through training, coordination calls and meetings, DHS FOIA professionals are working in the spirit of cooperation with the requester community and to ensure that all DHS employees recognize unnecessary bureaucratic hurdles have no place in the ‘new era of open Government' that the President has proclaimed.
The DHS FOIA Office is actively implementing sweeping policy changes in support of transparency and open government. Last May, my office issued a department-wide overview memorandum1 pertaining to FOIA, highlighting the important changes in the application of FOIA under the current Administration. In August 2009, I issued guidance to all operational and support component heads reminding them of their responsibility to embrace this new era of openness and implementing a Department-wide policy of proactive disclosure of several categories of documents.2 In October 2009, I disseminated further guidance specifically addressing the proactive posting of the Department's senior officials' calendars online.3 Lastly, during Sunshine Week 2010, I am issuing a department-wide memorandum reminding employees that Sunshine Week, dedicated to open government and government transparency, is an excellent opportunity for DHS to review our FOIA operations and renew our commitment to openness.
DHS began its operations with a large, inherited FOIA backlog due to the legacy agencies' backlogs. Additionally, when the new department stood up, it generated a flood of requests because of its status and mission. The result was a 98,396-request backlog at the end of fiscal year (FY) 2006—the largest federal FOIA backlog in history. Despite constraints, and the fact that from 2006 to 2009 the number of total requests to the Department held relatively constant, in the last three years DHS reduced its backlog by over 80 percent. At the end of FY 2009, the DHS-wide backlog was 18,787. As of February 2010, the DHS-wide backlog was 12,038. This incredible progress is a result of the ongoing dedication of the DHS FOIA professionals. To support the backlog elimination effort, I am working with component leadership to ensure the Department's components devote adequate resources to their FOIA programs.
Although the Open Government Directive calls for an annual 10 percent backlog reduction, my office established a 15 percent reduction goal for FY 2010.4 In order to stay on track to meet this goal, each component strives to hit a monthly processing target, calculated using variables such as the number of requests received per month and the component's processing capacity. Additionally, DHS is striving to close the 10 oldest cases detailed in the FY 2009 Annual FOIA Report.
*Information not provided by the component
For example, CBP's FOIA Division began a pilot of an in-house redaction tool for TECS law enforcement records to increase consistency in applying exemption codes office-wide to TECS records. This is a scripting program to allow for redaction within the TECS browser. The system sits "on top" of TECS and allows for consistent exemptions and the ability to update as changes may occur to exemptions applied to TECS data; improves production or processing time; and increases the security of any documents released electronically since there is no text behind the redaction codes applied and, therefore, no way to undo an applied redaction. The system is expected to reduce actual TECS-record processing time of entry and exit records by 50-70 percent. Approximately 150 pages can be processed and redacted in 10-15 minutes versus several hours with other redaction software.
As mentioned above, all components updated their FOIA websites to accommodate increased postings. They have also added elements to improve customer service. My office in DHS headquarters performs regular maintenance of the DHS site, such as keeping components' contact information up to date, revising the "how to submit" pages to make them more user-friendly, and re-designing the layout of FOIA pages to make them easier to navigate. Ample IT support makes it possible for DHS to regularly update postings, such as the Chief FOIA Officer's FOIA-related memos, Secretary Napolitano's calendars, and Congressional correspondence. Each office is responsible for assuring any documents they process and post are Section 508 compliant.
Two key positions related to transparency and disclosure at DHS Headquarters are the Associate Director of Disclosure & FOIA Operations and Associate Director of Disclosure Policy & FOIA Program Development. The Associate Director for Operations is responsible for processing FOIA and Privacy Act requests for records maintained by DHS Headquarters offices and coordinating responses involving records from multiple components. The Associate Director for Policy and Program Development is responsible for Department-wide disclosure training, identifying and remedying policy and program deficiencies, serving as the DHS FOIA Public Liaison9 and managing the DHS FOIA web presence.
At the component level, FOIA operations at DHS are decentralized. Currently, seven operational components and 10 Headquarters components at DHS have appointed FOIA Officers and staff.10
Although the FOIA Officers do not report to the DHS Headquarters FOIA Office, the DHS Headquarters FOIA Office continues its efforts to better coordinate and systematize the FOIA processes throughout the Department.
Examples of steps taken to ensure effective and efficient operations:
---
1 Overview of the Freedom of Information Act Memorandum, available at http://www.dhs.gov/xlibrary/assets/foia/foia_overview_of_the_freedom_of_information_act.pdf
2 Proactive Disclosure and Departmental Compliance with Subsection (a)(2) of the Freedom of Information Act (FOIA) Memorandum, available at http://www.archives.gov/ogis/dhs-foia.pdf
3 Calendar Format for Proactive Disclosure, available at http://www.dhs.gov/xfoia/editorial_0424.shtm
4 M-10-06, Open Government Directive (December 8, 2009), available at www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf
5 DHS started collecting backlog information from the components in June 2006. The FY 2006 and FY 2007 numbers above are derived from that data. DOJ required backlog reporting effective FY 2008. The above FY 2008 and FY 2009 information is from DHS Annual FOIA Reports to the Attorney General.
6 Transparency and Open Government Memorandum, 74 Fed. Reg. 4,685 (Jan. 21, 2009) available at http://edocket.access.gpo.gov/2009/pdf/E9-1777.pdf
7 5 U.S.C. § 552(a)(2)(D).
8 Freedom of Information Act: DHS Has Taken Steps to Enhance Its Program, but Opportunities Exist to Improve Efficiency and Cost-Effectiveness, available at http://www.gao.gov/products/GAO-09-260
9 As required by 5 U.S.C. § 552(l).
10The seven Operational Components and 10 HQ components with FOIA officers and staff: Transportation Security Administration (TSA), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), United States Coast Guard (USCG), United States Citizenship and Immigration Services (USCIS), and Federal Emergency Management Agency (FEMA), Office for Civil Rights and Civil Liberties (CRCL), Directorate for Management (MGMT), National Protection and Programs Directorate (NPPD), Office of the General Counsel (OGC), Office of Intelligence and Analysis (I&A), Office of Inspector General (OIG), Office of Operations Coordination (OPS), Office of Policy (PLCY), Directorate for Science and Technology (S&T), US-VISIT.
In Attorney General Holder's March 19, 2009 Memorandum on the Freedom of Information Act (FOIA), he stressed that the involvement of the agency Chief FOIA Officer is imperative for improving departmental FOIA programs. Each Chief FOIA Officer is accountable for ensuring his or her agency efficiently and appropriately complies with FOIA, which includes making recommendations to top agency officials regarding any necessary modifications to agency policies, practices, personnel and funding to do so. Those who accept the statutorily mandated role of Chief FOIA Officer must take the obligations associated with the position very seriously.
It is my duty to ensure that the Department of Homeland Security (DHS) embraces the Administration's presumption of openness, and our disclosure program has instituted definitive measures to mandate proactive record posting, adopt the "foreseeable harm" standard, and reduce the DHS request backlog. Through training, coordination calls and meetings, DHS FOIA professionals are working in the spirit of cooperation with the requester community and to ensure that all DHS employees recognize unnecessary bureaucratic hurdles have no place in the ‘new era of open Government' that the President has proclaimed.
The DHS FOIA Office is actively implementing sweeping policy changes in support of transparency and open government. Last May, my office issued a department-wide overview memorandum1 pertaining to FOIA, highlighting the important changes in the application of FOIA under the current Administration. In August 2009, I issued guidance to all operational and support component heads reminding them of their responsibility to embrace this new era of openness and implementing a Department-wide policy of proactive disclosure of several categories of documents.2 In October 2009, I disseminated further guidance specifically addressing the proactive posting of the Department's senior officials' calendars online.3 Lastly, during Sunshine Week 2010, I am issuing a department-wide memorandum reminding employees that Sunshine Week, dedicated to open government and government transparency, is an excellent opportunity for DHS to review our FOIA operations and renew our commitment to openness.
Steps Taken to Reduce the DHS FOIA Backlog
The FOIA Program at DHS was created at the same time the Department was stood up. The 22 component agencies that were merged into DHS had pre-existing, established FOIA operations. Elements of those decentralized operations continue today. DHS' components are responsible for establishing and maintaining their own FOIA programs and operationally decide whether to establish a centralized or decentralized FOIA program at the component or directorate level.DHS began its operations with a large, inherited FOIA backlog due to the legacy agencies' backlogs. Additionally, when the new department stood up, it generated a flood of requests because of its status and mission. The result was a 98,396-request backlog at the end of fiscal year (FY) 2006—the largest federal FOIA backlog in history. Despite constraints, and the fact that from 2006 to 2009 the number of total requests to the Department held relatively constant, in the last three years DHS reduced its backlog by over 80 percent. At the end of FY 2009, the DHS-wide backlog was 18,787. As of February 2010, the DHS-wide backlog was 12,038. This incredible progress is a result of the ongoing dedication of the DHS FOIA professionals. To support the backlog elimination effort, I am working with component leadership to ensure the Department's components devote adequate resources to their FOIA programs.
Although the Open Government Directive calls for an annual 10 percent backlog reduction, my office established a 15 percent reduction goal for FY 2010.4 In order to stay on track to meet this goal, each component strives to hit a monthly processing target, calculated using variables such as the number of requests received per month and the component's processing capacity. Additionally, DHS is striving to close the 10 oldest cases detailed in the FY 2009 Annual FOIA Report.
DHS FOIA Backlog History5
| Number of Backlogged Requests at End of FY 2006 | Number of Backlogged Requests at End of FY 2007 | Number of Backlogged Requests at End of FY 2008 | Number of Backlogged Requests at End of FY 2009 | |
|---|---|---|---|---|
| USCIS | 89,214 | 72,048 | 67,545 | 16,801 |
| CBP | 581 | 264 | 4,794 | 88 |
| CRCL | * | 4 | 5 | 11 |
| USCG | * | 937 | 1,044 | 385 |
| FEMA | 236 | 280 | 544 | 803 |
| FLETC | 0 | 3 | 7 | 36 |
| I&A | 95 | 38 | 0 | 8 |
| ICE | 7,346 | 1,069 | 8 | 10 |
| MGMT | N/A | 2 | 1 | 4 |
| NPPD | N/A | 8 | 13 | 11 |
| US-VISIT | 5 | 1 | 2 | 1 |
| OIG | 94 | 91 | 23 | 7 |
| OGC | 3 | * | 5 | 17 |
| OPS | 9 | 2 | 0 | 0 |
| PLCY | N/A | 12 | 7 | 30 |
| PRIV | 22 | 37 | 22 | 66 |
| S&T | 16 | 22 | 6 | 2 |
| USSS | 730 | 618 | 504 | 426 |
| TSA | 45 | 213 | 349 | 212 |
| AGENCY OVERALL | 98.396 | 75,649 | 74,879 | 18,918 |
Steps Taken to Apply the Presumption of Openness at DHS
The basic purpose of FOIA is to ensure a fundamental principle of a democratic society—that the public has a right to access and be informed about the activities of its government. Under this Administration, agencies are to process FOIA requests with a presumption of disclosure and are further encouraged to make discretionary releases. Thus, even if an exemption would apply to a record, discretionary disclosures are encouraged. If full disclosure of a record is not possible, any portion of that record that is not subject to an exemption will be disclosed. The Department of Homeland Security shows an overwhelming increase in the number of requests where records have been released in full or where records have been released in part when compared with those numbers in the previous year's Annual FOIA Report.Steps Taken to Increase Proactive Disclosures at DHS
In accordance with Transparency and Open Government Memorandum for the Heads of Executive Departments and Agencies (Transparency and Open Government Memorandum)6, and in the Freedom of Information Act Memorandum for the Heads of Executive Departments and Agencies (FOIA Memorandum), in August 2009, I directed DHS employees to proactively publish the following categories of information:- Historical daily schedules of the most senior agency officials (notated to reflect that officials may have deviated from the posted schedule and abridged as appropriate for security and privacy concerns)
- Executed contracts and grants
- Management directives and instructions
- Congressional correspondence under DHS control
- FOIA logs
- Any records released pursuant to a FOIA request that have been, or are likely to become, the subject of three or more requests7
- CBP posted more than 80 documents including Congressional correspondence, contracts, final opinions, FOIA logs, manuals and instructions, policies and procedures, and significant records of interest.
- FEMA is working with its Grants Program Directorate to develop a process to proactively post grant awards.
- FLETC posted its strategic plan, organizational structure, and financial reports. In addition, training material not considered law enforcement sensitive is posted for public use. These include student handbooks, sample tests, and reference materials.
- The Privacy Office (for DHS Headquarters) posted Volumes 8000-11000 of Departmental Directives, as well as FOIA logs for FY 2004-FY 2009.
- ICE posted detention facility reviews, government contracts, 287(g) audits, Intergovernmental Service Agreements (IGSAs), agreements with state and local jails, policy memoranda, as well as their Standard Operating Procedures.
- MGMT provides all DHS Management Directives for posting to the DHS FOIA Reading Room; to date, 181 have been posted.
- OIG is regularly updating its website proactively with management reports, audit reports, inspection reports, FOIA Logs, and procurement-related records. OIG posted the Inspector General's Calendar, OIG contracts, Congressional correspondence, and OIG's FOIA log.
- TSA posted 155 Management Directives and frequently-requested executed contracts. TSA also made available its Claims Management database, which enables the public to view the status and disposition of claims for lost or damaged items.
- USCG posted Management Directives and Instructions and FY 2009 FOIA logs. USCG also recently posted records regarding the following incidents: 1) CG Defender-class response boat mishap in Washington State Investigation, 2) CG 9/11/09 Potomac River response exercise in the District of Columbia Investigation, and 3) Loss of CG Dolphin helicopter in Hawaii Investigation.
- USCIS posted Statements of Policy and interpretations that have been adopted, final written determinations of administrative proceedings related to the Immigration and Nationality Act, administrative manuals, operating instructions and handbooks that affect the public, and FOIA Request logs.
- CBP will add the abridged daily historical schedule of the Commissioner biannually, and will regularly update the frequently requested documents, Congressional correspondence, contracts, final opinions, FOIA logs, manuals and instructions, policies and procedures, and other significant records of interest.
- USCIS will post historical FOIA logs and existing contracts.
- FEMA will develop an electronic test site designed to provide the public information such as contracts that have been requested more than three times in the past year and hyperlinks to HQ Grants and Policies web pages.
- ICE will establish processes to post currently awarded contracts and senior officials' calendars.
- OIG will establish processes to post historical calendars of the IG and Congressional Correspondence Logs on a quarterly basis; and FOIA logs annually.
- OPS will establish processes to post historical FOIA logs and the Director's calendar.
- S&T will post Acting Under Secretary Buswell's and Under Secretary O'Toole's calendar from Aug. 31, 2009, to present when deemed Section 508-compliant.
Steps Taken to Increase Utilization of Technology
The Government Accountability Office (GAO) audited the Department's FOIA program and issued a report on March 20, 2009, entitled Freedom of Information Act: DHS Has Taken Steps to Enhance Its Program, but Opportunities Exist to Improve Efficiency and Cost-Effectiveness.8 The technological improvements recommended by GAO in the report have already been implemented in varying degrees by the components. Additionally, DHS HQ FOIA is working with the components to ensure consistent application of technological tools. Currently, all of the components receive, track, and process requests electronically.For example, CBP's FOIA Division began a pilot of an in-house redaction tool for TECS law enforcement records to increase consistency in applying exemption codes office-wide to TECS records. This is a scripting program to allow for redaction within the TECS browser. The system sits "on top" of TECS and allows for consistent exemptions and the ability to update as changes may occur to exemptions applied to TECS data; improves production or processing time; and increases the security of any documents released electronically since there is no text behind the redaction codes applied and, therefore, no way to undo an applied redaction. The system is expected to reduce actual TECS-record processing time of entry and exit records by 50-70 percent. Approximately 150 pages can be processed and redacted in 10-15 minutes versus several hours with other redaction software.
As mentioned above, all components updated their FOIA websites to accommodate increased postings. They have also added elements to improve customer service. My office in DHS headquarters performs regular maintenance of the DHS site, such as keeping components' contact information up to date, revising the "how to submit" pages to make them more user-friendly, and re-designing the layout of FOIA pages to make them easier to navigate. Ample IT support makes it possible for DHS to regularly update postings, such as the Chief FOIA Officer's FOIA-related memos, Secretary Napolitano's calendars, and Congressional correspondence. Each office is responsible for assuring any documents they process and post are Section 508 compliant.
Steps Taken to Ensure DHS has an Effective System for Responding to Requests
At the Headquarters level, as the DHS Chief FOIA Officer, I have agency-wide policy responsibility for efficient and appropriate compliance with FOIA. I am assisted by the DHS Deputy Chief FOIA Officer and Director of Disclosure and FOIA, who has responsibility for agency-wide policy development and FOIA/Privacy Act compliance and program oversight. She also provides daily supervision of the DHS Headquarters FOIA Office, housed in the DHS Privacy Office, which processes most Department Headquarters FOIA requests and provides response coordination among components.Two key positions related to transparency and disclosure at DHS Headquarters are the Associate Director of Disclosure & FOIA Operations and Associate Director of Disclosure Policy & FOIA Program Development. The Associate Director for Operations is responsible for processing FOIA and Privacy Act requests for records maintained by DHS Headquarters offices and coordinating responses involving records from multiple components. The Associate Director for Policy and Program Development is responsible for Department-wide disclosure training, identifying and remedying policy and program deficiencies, serving as the DHS FOIA Public Liaison9 and managing the DHS FOIA web presence.
At the component level, FOIA operations at DHS are decentralized. Currently, seven operational components and 10 Headquarters components at DHS have appointed FOIA Officers and staff.10
Although the FOIA Officers do not report to the DHS Headquarters FOIA Office, the DHS Headquarters FOIA Office continues its efforts to better coordinate and systematize the FOIA processes throughout the Department.
Examples of steps taken to ensure effective and efficient operations:
- Due to increased online postings, HQ FOIA processors attended DHS hands-on Section 508 of the Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 (d), compliance training in February 2010. Each processor is responsible for assuring any documents they process are Section 508 compliant if the documents will be posted online.
- Several components, including USCIS and ICE, implemented online tools for customers to access information pertaining to the status and location of their request in the queue.
- The Chief FOIA Officer and her Deputy met with each component FOIA Officer to discuss specific component operational concerns and component progress on implementation of transparency initiatives detailed in Section I.
- The Chief FOIA Officer hosts a bi-weekly FOIA Officer conference call to discuss current processing issues. The calls are a means to proactively resolve any issues that could delay processing of requests and assure that the components have a forum to share ideas and best practices.
- The Associate Director of Disclosure Policy & FOIA Program Development also serves as the DHS FOIA Public Liaison. Handling customer concerns in the Liaison role provides heightened insight into the component FOIA programs. When working the other portion of the job, the Associate Director can address the exposed issues with program development assistance, such as employee training or an operational site evaluation.
- By taking an aggressive approach to proactive disclosure, DHS reduces the number of requests received because the information is already publicly available.
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1 Overview of the Freedom of Information Act Memorandum, available at http://www.dhs.gov/xlibrary/assets/foia/foia_overview_of_the_freedom_of_information_act.pdf
2 Proactive Disclosure and Departmental Compliance with Subsection (a)(2) of the Freedom of Information Act (FOIA) Memorandum, available at http://www.archives.gov/ogis/dhs-foia.pdf
3 Calendar Format for Proactive Disclosure, available at http://www.dhs.gov/xfoia/editorial_0424.shtm
4 M-10-06, Open Government Directive (December 8, 2009), available at www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf
5 DHS started collecting backlog information from the components in June 2006. The FY 2006 and FY 2007 numbers above are derived from that data. DOJ required backlog reporting effective FY 2008. The above FY 2008 and FY 2009 information is from DHS Annual FOIA Reports to the Attorney General.
6 Transparency and Open Government Memorandum, 74 Fed. Reg. 4,685 (Jan. 21, 2009) available at http://edocket.access.gpo.gov/2009/pdf/E9-1777.pdf
7 5 U.S.C. § 552(a)(2)(D).
8 Freedom of Information Act: DHS Has Taken Steps to Enhance Its Program, but Opportunities Exist to Improve Efficiency and Cost-Effectiveness, available at http://www.gao.gov/products/GAO-09-260
9 As required by 5 U.S.C. § 552(l).
10The seven Operational Components and 10 HQ components with FOIA officers and staff: Transportation Security Administration (TSA), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), United States Coast Guard (USCG), United States Citizenship and Immigration Services (USCIS), and Federal Emergency Management Agency (FEMA), Office for Civil Rights and Civil Liberties (CRCL), Directorate for Management (MGMT), National Protection and Programs Directorate (NPPD), Office of the General Counsel (OGC), Office of Intelligence and Analysis (I&A), Office of Inspector General (OIG), Office of Operations Coordination (OPS), Office of Policy (PLCY), Directorate for Science and Technology (S&T), US-VISIT.
FOIA Library
- Administration Staff Manuals and Instructions
- Final Opinions and Orders of Cases
- Frequently Requested Records
- Statements of Policy and Interpretations
The Freedom of Information Act (FOIA) requires agencies to make various types of records available for public inspection in both paper and electronic form. These records are available through this page.
For reports and publications relating to the Department’s mission and strategy, please visit About the Department of Homeland Security, which contains links to many of those documents.
For reports and publications released by Department of Homeland Security components please visit their FOIA pages.
Questions on how to submit a FOIA request? See How to Submit a FOIA Request to the Department of Homeland Security.
FOIA requests must be addressed to component(s) you believe hold the records sought. See Directing Requests to Proper Components.
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Administration Staff Manuals and Instructions
Administrative staff manuals and instructions to staff that affect a member of the public.Back To Top
Final Opinions and Orders of Cases
Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.Back To Top
Frequently Requested Records
Copies of all records, regardless of form or format, which have been released to any person under the FOIA and which, because of the nature of their subject matter, the Departmental Offices determines have become or are likely to become the subject of subsequent requests for substantially the same records.- Calendars of Senior Officials
- Chief FOIA Officer Report
- FOIA Annual Reports
- FOIA Improvement Plan
- FOIA Logs
- Procurement Records
- Other Frequently Requested
Statements of Policy and Interpretations
Those statements of policy and interpretations which have been adopted by the Departmental Offices and are not published in the Federal Register.- Delegations of Authority (PDF, 5 pages - 34.8 KB)
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