DHS’ Process for 

Responding to FOIA and 

Congressional Requests

 July 23, 2020 

OIG-20-56 
July 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 

DHS-OIG.OfficePublicAffairs@oig.dhs.gov 

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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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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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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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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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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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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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 201820 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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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 serviceproviding 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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September 2018, however, the FOIA Team reached capacity on its server27 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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OFFICE OF INSPECTOR GENERAL 

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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 B 

DHS Comments to the Draft Report 

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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 D 

DHS Privacy Office FOIA Request Process and DHS 

Congressional Request Process 

DHS Privacy Office FOIA Request Process 

Source: OIG analysis of FOIA Team documents 

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DHS Congressional Request Process

 Source: OIG analysis of ESEC and OLA documents 

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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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OFFICE OF INSPECTOR GENERAL 

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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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OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security

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: DHS-OIG.OfficePublicAffairs@oig.dhs.gov. 

Follow us on Twitter at: @dhsoig. 

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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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