Department of Homeland Security 

Office of Inspector General 

The DHS Privacy Office Implementation 


of the Freedom of Information Act
 

OIG-11-67 March 2011 
March 30, 2011
 

Table of Contents/Abbreviations 

Executive Summary.............................................................................................................1
 

Background..........................................................................................................................2 

Results of Review ................................................................................................................4 

The Privacy Office FOIA Staff Work Well With DHS Components............................4 

Recommendations........................................................................................................11 

The Chief FOIA Officer Should Make Regular Use of the 

Statutory Authority to Advise the Secretary on Program Needs .................................11 

Recommendation .........................................................................................................23 

Additional Guidance Is Needed on How DHS 

Will Make Discretionary Releases Under FOIA .........................................................23 

Recommendation .........................................................................................................29 

Recommendations Under the (k)(3) Authority Are 

Necessary To Improve DHS FOIA Staffing................................................................29 

Recommendation .........................................................................................................30 

Management Comments and OIG Analysis ......................................................................30 

Appendices 

Appendix A: Purpose, Scope, and Methodology.......................................................35 

Appendix B: Management Comments to the Draft Report.......................................36 

Appendix C: FOIA Statutory Exemptions and Exclusions .......................................43 

Appendix D: 2009 Executive Branch Guidance........................................................44 

Appendix E: Major Contributors to this Report........................................................49 

Appendix F: Report Distribution ..............................................................................50 

Abbreviations 

AP Associated Press 

DHS Department of Homeland Security 

DOJ Department of Justice 

FOIA Freedom of Information Act

 FY fiscal year 

OGIS Office of Government Information Services 

OIG Office of Inspector General 

USCIS United States Citizenship and Immigration Services 
OIG
 Department of Homeland Security 

Office of Inspector General 

Executive Summary 

This report assesses Department of Homeland Security Privacy 

Office implementation of the Freedom of Information Act, a statute 

designed to grant access to federal records. The Privacy Office 

advises department components on policies related to the act, 

although most components process requests independently. 

We reviewed how the Privacy Office facilitates compliance with 

two 2009 executive branch memorandums. In January 2009, the 

President directed agencies to have a “presumption of openness” 

on Freedom of Information Act releases. The Attorney General 

supplemented this vision with March 2009 guidance. We 

interviewed managers in 11 components, analyzed data, and 

studied policy. Specifically, we sought to determine the 

effectiveness of the Privacy Office’s work with other components 

to implement the law. 

We determined that the Privacy Office has made important 

progress in ensuring openness. Components appreciate the 

collaboration and responsiveness of the Freedom of Information 

Act staff in the Privacy Office. These efforts help the department 

implement a complicated statute. 

We also determined that the Office of the Secretary has had 

unprecedented involvement in the Freedom of Information Act 

process beginning in 2009. For several hundred requests deemed 

significant, components were required to provide for headquarters 

review all the material they intended to release. The department’s 

review process created inefficiencies that hampered full 

implementation of the Freedom of Information Act. We evaluated 

a Freedom of Information Act release about the review process, 

and identified some redactions we believe may have been 

inappropriate. We are making six recommendations to expand the 

progress that the Privacy Office has made. Three of these 

recommendations focus on how the Chief Freedom of Information 

Act Officer can provide more recommendations to the Secretary on 

ways to improve the department’s Freedom of Information Act 

program. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Background 

Department of Homeland Security (DHS) records are subject to 

release under the Freedom of Information Act (FOIA).1 Enacted in 

1966 and amended several times, FOIA mandates that certain 

executive branch information be accessible to the public. The right 

to receive records subject to disclosure is enforceable through the 

judicial process. 

The Supreme Court has written that FOIA is a “structural necessity 

in a real democracy,” because the law facilitates the citizenry’s 

ability to learn about government activities.2

 Various departments’ 

FOIA disclosures have exposed a range of improprieties and waste, 

including health care fraud, misuse of grant funds, and illegitimate 

law enforcement practices.3 

FOIA creates a presumption of disclosure. Material must be 

disclosed unless it comes within one of nine exemptions or three 

exclusions, summarized in Appendix C, to address instances when 

the government’s need to protect information may outweigh the 

public’s right to know. Nonetheless, the law does not require use 

of exemptions in all applicable situations. In 1965, a Senate 

committee declared that successful FOIA implementation relies on 

“a workable formula which encompasses, balances, and protects all 

interests, yet places emphasis on the fullest responsible 

disclosure.”4 As the Supreme Court has noted, FOIA exemptions 

“were only meant to permit the agency to withhold certain 

information, and were not meant to mandate nondisclosure.”5 

In general, the statute requires agencies to process a FOIA request 

within 20 business days.6 Agencies can contact requesters to 

clarify what is being requested, or to note that the scope of the 

request is so large as to require additional processing time. When 

the agency denies the request in full or in part, it must explain why, 

and inform the requester of the right to appeal. 

On January 21, 2009, President Obama issued a memorandum on 

FOIA implementation that emphasized historical principles of 

1 5 U.S.C. § 552(a). 

2 Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 171 (2004). 3 The Right to Know: Your Guide to Using and Defending Freedom of Information Law in the United
 

States at 94-99 (Santa Barbara, CA: Praeger Press, 2009).
 4

 S. Rep. No. 89-813 at 3 (1965). 

5 Chrysler Corp. v. Brown, 441 U.S. 281, 294 (1979). 6 5 U.S.C. § 552(a)(6). 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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information disclosure. Agencies were directed to make all FOIA 

decisions under a “presumption in favor of disclosure.” When in 

doubt, the President wrote, “openness prevails.” 

On March 19, 2009, the Attorney General, who provides FOIA 

policy guidance to federal entities, directed that agencies should 

not withhold records simply because an exemption may apply. 

When records cannot be fully disclosed, agencies must consider 

whether partial disclosure is possible. He added that “unnecessary 

bureaucratic hurdles” should not exist in a FOIA program. The 

Attorney General also directed that agencies should expand use of 

the Internet to post some information before FOIA requests are 

submitted. Such proactive disclosure requirements were originally 

added to FOIA in the Electronic Freedom of Information Act 

Amendments of 1996.

7 

This report refers to the memorandums of the President and 

Attorney General as the 2009 executive branch guidance. These 

memorandums, attached in Appendix D, reiterated the longstanding FOIA principle that information should not be withheld to 

protect public officials from embarrassment, to avoid disclosure of 

errors, or “because of speculative or abstract fears.” 

Most of the department’s components process requests for their 

own records under the guidance of a FOIA officer, while DHS 

Privacy Office staff processes requests for the Privacy Office and 

eight headquarters offices.8

 From the Privacy Office, the Chief 

FOIA Officer, who is also the department’s Chief Privacy Officer, 

supports component efforts, shares information, and monitors the 

DHS FOIA program. However, the Privacy Office does not 

control FOIA processing in other DHS components, and agency 

FOIA officers are not supervised by the Chief FOIA Officer. 

To process requests, FOIA officers work with program experts to 

determine whether responsive information exists, then consider the 

possible exemptions or exclusions that would allow the agency to 

withhold all or part of the information. Experts at the components 

have the best knowledge about what information is responsive and 

whether disclosure of certain information could have an 

operational impact. The Privacy Office offers advice to 

components on FOIA law and policy, but a component can process 

7

 P.L. 104-231. 

8

 Office of the Secretary, Citizenship and Immigration Services Ombudsman, Office of Counternarcotics 

Enforcement, Domestic Nuclear Detection Office, Office of the Executive Secretariat, Office of Health 

Affairs, Office of Legislative Affairs, and Office of Public Affairs. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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many requests without the intervention of other parts of DHS. 

Cases also arise that require the input of multiple DHS 

components, or other federal entities, such as the Department of 

State or the Federal Bureau of Investigation. 

DHS has a substantial FOIA caseload. In fiscal year (FY) 2009, it 

received 103,093 FOIA requests, or 18% of the federal 

government’s 557,825 total requests. The number of requests rose 

to 130,098 in FY 2010. United States Citizenship and Immigration 

Services (USCIS) accounted for 70% of the DHS FY 2010 total. 

This is because USCIS maintains Alien Files, which are frequently 

requested records relating to an individual’s immigration status. 

In addition to the volume of requests, DHS faces a challenge 

because FOIA requests can be complex. The size of requested 

documents and the need to consult with other agencies means that 

some FOIA requests cannot be processed in a timely manner. This 

is not necessarily indicative of inefficient disclosure procedures. 

Even though DHS staff may work with requesters to limit the 

scope of some requests to decrease response time, delays beyond 

the statutory deadline will occur. For FY 2010, even releases 

defined as “simple” took an average of 62 days to process. 

In March 2009, the U.S. Government Accountability Office 

reported on the department’s overall FOIA program.9 The review 

focused on DHS components that had the most pending requests. 

The report noted that the department has taken important steps to 

reduce request backlogs, which are FOIA disclosures that have not 

been released in the allotted timeframe. The report made five 

recommendations, including improvements in the use of redaction 

software, expanded training, and backlog monitoring. 

Results of Review 

The Privacy Office FOIA Staff Work Well With DHS 

Components
 

The Privacy Office Helps DHS Implement FOIA 

DHS components have a strong working relationship with the 

Privacy Office. Component FOIA officials we interviewed praised 

the Privacy Office’s FOIA staff for their approachability and 

responsiveness to requests for assistance. The Privacy Office 

9

 U.S. Government Accountability Office, Freedom of Information Act: DHS Has Taken Steps to Enhance 

Its Program, but Opportunities Exist to Improve Efficiency and Cost-Effectiveness, GAO-09-260. 

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administers biweekly DHS FOIA teleconferences, an initiative 

established in March 2009. These calls help with the sharing of 

ideas, high-profile requests, litigation, and hot topics. 

Components report FOIA request processing statistics to the 

Privacy Office monthly, and the Privacy Office compiles data from 

the reports for the department’s internal monthly report. The 

monthly component reports include the number of requests 

received and processed, the age of requests, and the number of 

times a component made a discretionary release and proactive 

disclosure. DHS set a department-wide 15% backlog reduction 

goal for FY 2010, which is above the 10% reduction goal that the 

Office of Management and Budget established in December 2009. 

Each month the Privacy Office calculates components’ backlog 

reduction goal, establishing the number of processed requests that 

are needed to reduce any existing backlog. 

The Privacy Office conducts FOIA training for components. 

Training can cover FOIA in general or be tailored to specific 

situations, such as the use of particular exemptions. This training 

is based on a component’s request, rather than a set schedule. 

When the President and Attorney General issued FOIA 

memorandums in 2009, the Privacy Office forwarded copies to 

DHS FOIA officials. Training slides and guidance that the 

Department of Justice (DOJ) prepared were also sent, as well as 

additional Privacy Office guidance on implementation of both 

memoranda. 

The Privacy Office has advocated for components that seek 

managerial support to hire more FOIA staff or to change FOIA 

operations. Interviewees stated that the Privacy Office 

successfully advocated for additional FOIA staff in two 

components and consolidation of one component’s multiple FOIA 

offices. A Privacy Office manager also participated in component 

FOIA officer hiring panels. The Privacy Office will lend its own 

staff to components that need processing assistance. One 

component’s FOIA Officer is actually a Privacy Office employee. 

Progress Has Been Made on Proactive Disclosure 

In March 2009, the Chief FOIA Officer issued guidance to 

components on the new standard under FOIA. In addition to 

attaching a copy of the Attorney General’s memorandum, the 

Chief FOIA Officer noted that all DHS employees share the 

responsibility to ensure transparency and administer FOIA 

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effectively, including an expansion of proactive disclosure through 

the use of electronic reading rooms available on components’ 

public websites. The following categories of records are subject to 

proactive disclosure: 

1.	 Final opinions and orders made in the adjudication of 

cases; 

2.	 Policy statements adopted by the agency; 

3.	 Administrative staff manuals and instructions to staff that 

affect a member of the public; and 

4.	 Records released in response to a FOIA request that “are 

likely to become the subject of subsequent requests for 

substantially the same records.”10 

In May 2009, the Chief FOIA Officer took steps to expand 

proactive disclosure under FOIA by issuing another memorandum 

to senior DHS officials. That memorandum emphasized the 

presumption of disclosure and the need for discretionary release of 

information. The memorandum emphasized the historical view 

that exemptions do not apply merely because full or partial 

disclosure may cause embarrassment or demonstrate an error or 

failure. Distributing this information demonstrated a respect for 

the 2009 executive branch guidance and a desire to assist DHS 

components. 

FOIA managers informed us that DHS was the first department to 

issue its own proactive disclosure memorandum. This August 

2009 guidance from the Privacy Office directed components to 

disclose six categories of records, which expanded on the four 

types of information listed in FOIA section (a)(2). The following 

DHS records are subject to this disclosure: 

1.	 Historical daily schedules of the most senior agency 

officials; 

2.	 Executed contracts and grants; 

3.	 Management directives and instructions; 

4.	 Congressional correspondence; 

5.	 FOIA logs (summaries of cases so the public may 

understand what is being requested under FOIA); and 

6.	 Records released pursuant to a FOIA request that have 

been, or are likely to become, the subject of three or more 

requests. 

10 5 U.S.C. § 552(a)(2). 

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The Chief FOIA Officer provided additional assistance in October 

2009, by issuing guidance on formatting the senior officials’ 

historical schedules prior to disclosure. Although the Privacy 

Office recommended that the department post calendars of officials 

at the Assistant Secretary (or equivalent) level or higher, 

components retained the ability to choose which officials’ 

calendars they would disclose. The memorandum recommended 

that components use a public version of the calendar with the 

removal of information exempt from FOIA, such as personal 

appointments. The memorandum also included suggestions for 

describing events uniformly, such as when officials were on leave. 

In March 2010, the Chief FOIA Officer issued a memorandum to 

component heads reiterating the presumption of disclosure and the 

proactive disclosure categories. The memorandum included 

statistics showing that the department had increased the number of 

records released in full by 46% and the number released in part by 

73%. 

The DHS website provides a direct link to each major component’s 

electronic reading room. Component FOIA officers appreciated 

the Privacy Office’s efforts to expand the use of electronic reading 

rooms, but noted that challenges can inhibit this work. These 

challenges include an unexpected influx of FOIA requests, staffing 

limitations, and the time required to review documents. It can be 

time-consuming for busy component FOIA offices to redact 

calendars, contracts, and other documents subject to the DHS 

proactive disclosure policy. 

The DHS electronic reading room provides a list of frequently 

requested information, then directs users to which component or 

directorate will handle requests to locate records. We reviewed 

component websites to discover the extent to which records are 

disclosed proactively. FOIA logs, for example, are easily 

accessible, although the time periods covered vary. The Privacy 

Office has FOIA logs posted from 2004 to 2010. With few 

exceptions, component FOIA logs are posted for FY 2009 and 

2010.11 

The DHS electronic reading room posts schedules for Secretary 

Napolitano. As of March 2011, Secretary Napolitano’s calendars 

for January 2009 through July 2010 are posted. There is 

inconsistency across components regarding the proactive 

11 http://www.dhs.gov/xfoia/editorial_0424.shtm#6. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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disclosure of senior officials’ schedules, with limited posting in 

some components, or even no posting in certain cases. We 

observed that some of the delay is due to the extensive redaction 

process necessary to clear privacy-related information, in addition 

to pending clearance by officials. 

The DHS website posts the top five categories of requests that the 

department receives, along with information on the components to 

which an individual can send a request. The top five requests of 

the department are for Alien Files, contracts, disaster relief 

information, grants, and information on No Fly lists and the 

Traveler Redress Inquiry Program.12 

Proactive disclosure of contracts creates challenges for 

components and the Privacy Office, mainly because of concerns 

about proprietary information. To speed the proactive disclosure 

of contracts, the Privacy Office suggests that components begin to 

identify proprietary information when the contract is signed. 

However, our interviews with FOIA officers and our observations 

validate that inconsistencies in proactive disclosure of contracts 

exist across the department. Several components noted that the 

length of some contracts makes this process even more difficult. 

This has diminished the department’s ability to achieve the goals 

of proactive disclosure. DHS receives a substantial number of 

FOIA requests for contracts, so additional proactive disclosure 

could serve the public and reduce the number of FOIA requests 

overall. The Privacy Office has been engaged on this matter, but 

additional attention is desirable. 

Clarification of the Public Liaison’s Role Would Be Beneficial 

In 2005, Executive Order 13392 established the position of FOIA 

Public Liaison in federal agencies. The Openness Promotes 

Effectiveness in our National (OPEN) Government Act of 2007 

formally codified this position as a way to assist requesters in 

FOIA disputes with agencies. The Public Liaison, who reports to 

the DHS Deputy Chief FOIA Officer, serves as a mediator 

between components and FOIA requesters, but the position does 

not have control over agency FOIA operations. While DHS has 

only one Public Liaison, some departments, such as the 

departments of Defense, Energy, and Interior, have multiple Public 

Liaisons. 

12 http://www.dhs.gov/xfoia/editorial_0579.shtm. 

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FOIA officers and external agencies we interviewed said the DHS 

Public Liaison has improved the department’s disclosure process. 

Managers at the Office of Government Information Services 

(OGIS), a FOIA mediation office that is part of the National 

Archives and Records Administration, said that the DHS Public 

Liaison is one of the best in the government.13 The Public 

Liaison’s responsibilities include interaction with outside entities 

to facilitate FOIA disclosures. OGIS has sought the Public 

Liaison’s assistance in facilitating the resolution of various DHS 

FOIA cases. Examples of OGIS work with the Public Liaison 

included two USCIS FOIA requests that were initially delayed or 

denied. OGIS officials and DHS FOIA Officers said that the 

Public Liaison is effectively handling the statutory mediation role. 

Even with the positive view of the Public Liaison, some 

departmental confusion exists. Because the statute does not 

provide extensive guidance, the Public Liaison suggested further 

development of policy on the mediation process and interaction 

with components. Confusion in parts of DHS led to the creation of 

public liaison positions in some components, although the Privacy 

Office recognizes only one Public Liaison across all of DHS. 

Additionally, the Public Liaison’s ability to make changes to the 

FOIA requester service centers in components is part of the 

original role for the position, but the Public Liaison has limited 

ability to fulfill that function. Although the Privacy Office has 

helped components on customer service issues, greater clarity 

concerning the Public Liaison’s work would be beneficial, 

especially regarding how the position can be used to foster any 

needed change in components’ practices. 

The Privacy Office Can Build on Existing Reviews of 

Component FOIA Operations 

The Privacy Office should institute an ongoing review process to 

ensure continuing improvement in component FOIA operations. 

These regular reviews would allow the Privacy Office to discover 

problems and ensure ongoing compliance with FOIA and DHS 

policies. A FOIA manager provided us with a component’s release 

in which redactions, which were made with a magic marker, did 

not protect the information from disclosure. The component’s 

FOIA Office did not have an opportunity to correct this error 

before disclosure of the information. A Privacy Office process of 

13 OGIS was created to review federal agencies’ FOIA policies and procedures, to mediate disputes, and to 

generally act as a “bridge” between FOIA requesters and federal agencies. 5 U.S.C. § 552(h)(1). 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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regular component reviews may identify such incorrect or 

inefficient practices. 

The Privacy Office has conducted some ad hoc component 

reviews, which resulted in greater efficiency across DHS. For 

example, in September 2008, the Privacy Office reviewed a 

component after receiving complaints from requesters. 

Components may also request assistance for a particular need, such 

as staffing problems. 

In January 2008, Privacy Office managers visited components to 

examine files and discuss processing challenges. At one 

component, incomplete files and inadequate office equipment 

hindered efficient operations. Privacy Office FOIA staff became 

involved in processing that component’s FOIA requests as a result 

of this component visit. In another case, the Privacy Office 

reviewed FOIA operations at the three components with the most 

backlogs. Work with component staff helped identify and 

eliminate problems with backlog reduction. These reviews 

resulted in action to improve operations, such as hiring contractors, 

centralizing FOIA operations, and hiring a new FOIA officer. 

The Chief FOIA Officer suggested that any review process must be 

collaborative, because component FOIA officers would likely 

reject a mini-audit as too burdensome—a reasonable concern. We 

suggest that components have a role in how the review process 

would operate to ensure that unique statutory issues, such as Office 

of Inspector General (OIG) independence or other componentspecific needs, are fully recognized. Instituting a regular review 

process should not damage the positive relationship between the 

Privacy Office and components. 

One interviewee suggested that the Privacy Office could institute 

regular reviews of component FOIA operations via a memorandum 

from the Chief FOIA Officer. This would be consistent with the 

Chief FOIA Officer’s statutory authority under FOIA subsections 

(k)(1) and (k)(2) to have agency-wide responsibility for efficient 

and appropriate program compliance and to monitor 

implementation of FOIA across the department. Additionally, the 

newly created Deputy Chief FOIA Officer’s position description 

includes a requirement to develop component reviews and 

inspections to ensure uniformity and maximum compliance with 

FOIA. The Privacy Office could further leverage its good working 

relationship with components through collaborative development 

of a protocol to review component FOIA operations. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Recommendations 

We recommend that the Chief FOIA Officer: 

Recommendation #1: Develop additional internal policies 

regarding proactive disclosure to ensure consistency across 

components and quicker posting of information. 

Recommendation #2: Formalize the roles and responsibilities of 

the Public Liaison. 

Recommendation #3: Implement an internal review function to 

assess department-wide FOIA operations on a regular basis to 

maximize efficiencies and improve the administration of the 

department’s FOIA operations. 

The Chief FOIA Officer Should Make Regular Use of the 

Statutory Authority to Advise the Secretary on Program Needs 

During our review, we learned that the Office of the Secretary was 

involved in examining certain FOIA releases prior to disclosure. 

This process was created so the department would be aware of 

certain FOIA requests deemed significant. After reviewing 

information and interviewing DHS FOIA experts, we determined 

that the significant request review process (hereafter, the review 

process) did not prohibit the eventual release of information. 

However, the intervention of the Office of the Secretary created 

inefficiencies. Although the review process delayed some releases, 

the Office of the Secretary is responsible to oversee DHS 

operations. The statute establishes that the Secretary “is the head 

of the Department and shall have direction, authority, and control 

over it.”14 Our concern pertains to the scope of and inefficiency 

caused by the review process, not to the Secretary’s role, as head 

of DHS, in overseeing the FOIA performance of her subordinates. 

Although the department redesigned the review process in July 

2010, further enhancements can be made to improve FOIA 

implementation. To that end, the Chief FOIA Officer should use 

the authority at 5 U.S.C. § 552(k)(3) to make recommendations to 

the Secretary regarding ways to improve the DHS FOIA enterprise. 

14 6 U.S.C. §102. 

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The OPEN Government Act Established That Chief FOIA 

Officers Should Make Recommendations to the Secretary 

Congress made various changes to FOIA in the OPEN 

Government Act of 2007. For example, agencies must create 

individual tracking numbers for requests as a way to improve 

service provided to FOIA requesters. In addition, public disclosure 

of various data, such as processing times and use of exemptions, is 

required. 

The OPEN Government Act also created the position of Chief 

FOIA Officer in federal agencies. The Secretary appoints this 

individual, who serves at the Assistant Secretary level. The Chief 

FOIA Officer has agency-wide responsibility for efficient and 

appropriate compliance with FOIA. To coincide with this 

responsibility, 5 U.S.C. § 552(k)(3) establishes that the Chief 

FOIA Officer shall make recommendations to the Secretary for 

such adjustments to agency practices, policies, personnel, and 

funding as may be necessary to improve implementation of FOIA. 

The Attorney General reiterated this requirement in his March 

2009 memo. The Attorney General noted that Chief FOIA 

Officers must recommend such adjustments to agency practices, 

personnel, and funding as may be necessary. 

Components have noted several improvements across the DHS 

FOIA program since the Chief FOIA Officer’s arrival in March 

2009. 

The Office of the Secretary’s Review of Significant Requests 

Was a Missed Opportunity for the Chief FOIA Officer To Use 

the (k)(3) Authority 

The Office of the Secretary’s review of certain significant FOIA 

requests was the subject of a July 2010 Associated Press (AP) 

story, which led to concerns that the department was creating a 

“political filter” to slow the disclosure of DHS records under 

FOIA. 15 We were not able to substantiate the most serious 

allegations made in the AP story or subsequent public comments. 

However, we determined that the review process led to 

inefficiencies and slower processing of certain FOIA requests. 

We could not determine the exact number of FOIA requests that 

were subject to the review process because the cases were not 

15 “A Political Filter for Info Requests,” Associated Press, July 21, 2010. 

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tracked consistently. We asked the Chief FOIA Officer for data on 

the time required to review significant cases. The information had 

to be collected manually, which took a considerable amount of 

time. The Chief FOIA Officer suggested that the data were not 

fully reliable. Even with these limitations, the data and DHS FOIA 

experts suggested that as many as 610 FOIA releases were 

identified as being significant, and thus subject to the review 

process, between late September 2009 and early July 2010. The 

data and DHS FOIA experts indicate that 150 to 250 FOIA 

responses were processed and thus part of the review process 

during this period. We were unable to resolve this discrepancy 

based on the incomplete data, and we do not estimate the exact 

number of requests involved. DHS received about 8,500 requests a 

month during the time the review process was formulated. 

The review process was initiated formally in September 2009, even 

though the Office of the Secretary pursued details about certain 

requests earlier. The review process was automated in July 2010. 

Components now place significant releases in SharePoint, a 

software platform that allows individuals to review and collaborate 

on documents. This enables interested personnel to review the 

content of releases to prepare for possible media coverage. After 

the information has been on SharePoint for 3 days, components 

may release it to the requester without a formal review process. 

We were informed in March 2011 that the SharePoint process will 

be reduced to a 1-day hold. This change will further improve the 

DHS FOIA program. 

Advising the Office of the Secretary of Certain FOIA Requests 

Has Occurred in DHS for Several Years 

We received information from the Office of the Secretary and the 

Chief FOIA Officer about the origin of the review process. 

Components have been required to notify the Office of the 

Secretary of certain FOIA cases since 2005. This policy was 

designed to provide data on FOIA requests in general, including 

the identity of some requesters. Information gained is included in 

the department’s weekly report to the White House. 

In 2006, the policy was revised to provide more guidance to DHS 

components on which types of FOIA requests were of interest for 

weekly reporting purposes. This policy did not require that the 

Office of the Secretary review the actual FOIA releases. Rather, 

the process provided information about what was being disclosed. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Among other areas, the Office of the Secretary asked for details on 

FOIA releases that— 

1.	 Related to a presidential or agency priority; 

2.	 Would likely garner media attention; 

3.	 Contained documents related to meetings with prominent 

elected, business, or community leaders; or 

4.	 Were from the media, Congress, or special interest groups. 

This request policy remained in effect after the change of 

administrations. In 2009, the Office of the Secretary had a 

heightened interest in several specific FOIA requests. This 

prompted inquiries to components for more details about the scope 

of some requests and the individuals who had submitted them. A 

significant change occurred in September 2009, when components 

were prohibited from releasing responses to FOIA requests that 

met the criteria for inclusion in the weekly report until the Office 

of the Secretary reviewed the material. The inefficiencies we 

discovered began after the decision to review all significant 

requests prior to release. 

FOIA Disclosures Were Still Made Under the Significant 

Request Review Process 

We received information from FOIA experts at various DHS 

components and reviewed documents and communications related 

to the review process. None of this information demonstrated that 

the Office of the Secretary prohibited the eventual release of 

information under FOIA. Information we obtained from the FOIA 

staff and our review of documents corroborates this assessment. 

The Office of the Secretary Was Interested in Certain 

Requesters’ Backgrounds Before the Significant Request 

Review Process Began 

In May 2009, staff in the Office of the Secretary asked questions 

about FOIA releases related to the department’s work on rightwing extremist groups. A report on the subject was researched 

during the Bush administration, but not finalized and released until 

after President Obama’s election. DHS received several FOIA 

requests after initial media stories about DHS’ analysis of rightwing extremism. A staff person in the Office of the Secretary 

asked the Privacy Office why certain FOIA requesters received 

expedited processing, a process the FOIA statute provides for 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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when a requester demonstrates a “compelling need.”16 The next 

day, the Office of the Secretary asked, “Have we actually turned 

over any documents at this point? If so, when and what, and if not, 

when do we expect to?” One week later, the Office of the 

Secretary asked for a list of all 33 organizations that requested the 

right-wing extremism report. After the list was provided, a further 

inquiry was made regarding how many of the organizations were 

media outlets. 

Although internal discussions regarding agency actions are 

appropriate, in this context, these discussions created “unnecessary 

bureaucratic hurdles” that delayed DHS components’ ability to 

respond more timely to FOIA requests. For example, why a 

specific document was requested is insignificant under FOIA, 

since requesters do not need to justify their interest in desired 

records. The Supreme Court has established that17: 

“citizens should not be required to explain why they seek the 

information. A person requesting the information needs no 

preconceived idea of the uses the data might serve. The information 

belongs to citizens to do with as they choose . . . the disclosure does 

not depend on the identity of the requester. As a general rule, if the 

information is subject to disclosure, it belongs to all.” 

Department officials told us that that advance knowledge of 

significant releases can improve the DHS response to the media 

inquiries that often follow public release of information about DHS 

activities. While the department has a legitimate obligation to 

respond to media inquiries, we are not persuaded that delaying a 

FOIA release so that officials can prepare for expected inquiries is 

the best public policy. Again, the problem is that some of these 

inquiries delayed the final issuance of some FOIA responses. 

The department did not violate privacy laws or other rules when 

the Office of the Secretary gained information about some 

requesters. Indeed, agencies usually disclose the identities of 

requesters to the public when posting FOIA logs. 

16 5 U.S.C. § 552(a)(6)(E). DHS regulations set forth standards for evaluating such requests. 6 C.F.R. 

§ 5.5(d).

17 National Archives and Records Administration v. Favish, 541 U.S. 157, 172 (2004). 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Examples Exist of Statutory Noncompliance and Inefficiencies 

Caused When Some Significant Requests Were Reviewed 

Documents we received demonstrate several cases of releases 

being delayed because the Office of the Secretary asked basic 

questions about the FOIA process or for other minor reasons. In 

many cases, delays under the review process were short. Some 

releases needed only 1 to 4 days for completion of the review 

process. These relatively brief delays still caused the temporary 

withholding of certain documents that a component was prepared 

to release. 

Other releases were delayed longer. In one example, the Office of 

the Secretary received a component’s release on October 16, 2009. 

The review was delayed at least 10 calendar days because of 

higher-priority business in the reviewing office. We are not 

including quotations from this and several other e-mails related to 

the review process because the statements were redacted in 

information released to AP. We will discuss the redactions from 

the release to AP later in this report. 

A similar example occurred on November 9, 2009, when the 

Privacy Office forwarded a FOIA response to the reviewers in the 

Office of the Secretary. Three days later, a staff person replied, “I 

have a few questions about this one.” On November 17, the 

Privacy Office asked about the status of the request, since no 

authorization had been received to permit release of the 

information. Data we received from the Privacy Office included a 

range of examples of cases that were under review at the Office of 

the Secretary for several weeks. 

We cannot establish how often the review process caused the delay 

of FOIA releases to the point of statutory violation (i.e., delays that 

extended the response time beyond the 20-business-day statutory 

deadline). Office of the Secretary personnel said that significant 

releases were not simply stuck in the process waiting for a staff 

person to review the information. Some proposed releases may 

have been returned to the component with a question, or sent to the 

Office of the General Counsel for further legal review or to check 

the consistency of redactions. Regardless of how the release was 

handled while in the review process, data suggest, but we cannot 

confirm with exactness, that dozens of FOIA releases were delayed 

for weeks while the component waited for approval to disclose the 

information to the requester. Many of these requests appeared to 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 16
 
 

have been in process for more than 20 business days and thus had 

already exceeded the statutory deadline before the review process 

began. The delay of even one FOIA request beyond the statutory 

deadline creates legal risk, because a requester can file in U.S. 

district court for judicial review as soon as the statutory time 

period for responding passes. 

Again, in certain cases, review process delays led to violations of 

the statutory deadline. For example, a component received a FOIA 

request on March 1, 2010, and completed processing it on March 

19. The release could have been made then, which was within the 

20 business days required in the statute. However, it was not until 

March 31—23 business days after the request was made—that an 

Office of the Secretary staff person submitted minor edits to clarify 

the component’s response. The original language and suggested 

edits appear below: 

Original wording in the component’s response letter 

In responding to a FOIA request, the DHS/Privacy Office will 

search for responsive documents in its control on the date the 

search began. We began our search on March 4, 2010. 

Wording changes that the Office of the Secretary suggested 

Beginning on March 4, 2010, the DHS/Privacy Office searched 

for responsive documents in its control on the date the search 

began. 

The department officials told us that correcting errors in cover 

letters was necessary, and led component authors to devote more 

attention to grammar and quality. Letters with errors reflected 

poorly on the department’s professionalism and service, they 

added. We agree that certain letters could be improved. The 

department may wish to remain focused on the quality of FOIA 

response letters, and the component review process we recommend 

should facilitate needed improvements without a delay in 

disclosing information. We do not support delaying FOIA requests 

beyond the statutory timeframe to make minor edits, which is 

inconsistent with the purpose of FOIA and the short timeframes 

established in the statute. 

Other cases of delay are evident. In a June 2010 case, a 

component asked for an update more than 3 weeks after the review 

process began. In reply, a Privacy Office manager said that the 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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release was still in the review process. The component FOIA 

expert noted the urgency of the matter, since the review process 

caused a violation of the 20-business-day response requirement. 

Even when the review process did not violate the statutory 

timeframe, inefficiencies resulted. On several occasions, staff in 

the Office of the Secretary made basic inquiries about FOIA in 

general and why records were being sought in particular cases. In 

most instances, neither FOIA officers nor program experts would 

have answers to such questions. To the extent the staff was 

seeking answers to specific operational questions raised by FOIA 

requesters, the staff should direct such questions to program 

experts, not FOIA processors. Additionally, FOIA does not 

require requesters to specify why they want records. Nonetheless, 

the Privacy Office provided e-mail responses to such questions in 

some cases. Reviewed materials reflected the frustration of FOIA 

staff throughout the department regarding the time required to 

respond to such inquiries. 

Inefficiencies were also created when responsive documents were 

too large to send via e-mail. In certain instances, Privacy Office 

managers had to hand-carry paper or disk copies of FOIA releases 

to the Office of the Secretary. These actions did not result in major 

expenses or extensive processing delays, but the inefficiency 

involved is at odds with the 2009 Attorney General memorandum, 

which began by emphasizing “our nation’s fundamental 

commitment to open government” through implementation of the 

President’s vision. The memorandum also articulated a view that 

“timely disclosure of information is an essential component of 

transparency.” The practices outlined above were contrary to this 

spirit. 

When we interviewed the Chief FOIA Officer and a staff person in 

the Office of the Secretary, they agreed that the review process 

introduced some delays and inefficiencies. Both told us that only a 

few cases were affected in any significant way. We were provided 

examples where the Office of the Secretary worked with 

component counsel to improve FOIA responses. In one case, the 

Office of the Secretary ensured that a component did not 

prematurely release another department’s records. 

The department also informed us that the leadership of the Privacy 

Office and officials in the Office of the Secretary helped to 

develop the SharePoint process now used, which facilitates release 

of information while still providing managers with the awareness 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 18
 
they need about cases that will likely cause media interest. We 

acknowledge that the use of SharePoint is preferable to the 

abandoned process that delayed dozens of releases for long 

periods. However, the new process is not required by FOIA and 

seems inconsistent with the 2009 FOIA guidance prohibition of 

“unnecessary bureaucratic hurdles.” The department should 

continually examine how any delay affects statutory compliance 

and the efficiency of the DHS disclosure program. We do not 

understand why certain finalized releases, even for “awareness” 

purposes, must remain in the department’s control for 3 days, 

effectively trimming to 17 days the amount of time available to 

FOIA processing officers if the entire process is still to satisfy the 

20-day statutory limitation. 

DHS FOIA Experts Questioned the Utility of the Significant 

Request Reviews 

We interviewed FOIA experts in the Privacy Office and 10 other 

DHS components, including those in the Office of Inspector 

General. These offices received 99% of DHS FOIA requests from 

October 2008 through June 2010. Generally, the experts had a 

negative view of the significant review process. 

When the Office of the Secretary began to request copies of all 

significant FOIA disclosures prior to release, the Chief FOIA 

Officer expressed concern to a senior official in the Office of the 

Secretary. Under the process, components would send certain 

FOIA releases to the Privacy Office. Staff there would forward the 

information to the Office of the Secretary for review. The Chief 

FOIA Officer suggested that the process could create inefficiencies 

and burden the components. Although the Office of the Secretary 

later improved the process through SharePoint, the concerns that 

the Chief FOIA Officer expressed as the review process was being 

established were not heeded. 

Documents we reviewed indicate that the Chief FOIA Officer’s 

reservations continued after implementation of the review process. 

In December 2009 e-mail messages to her staff, the Chief FOIA 

Officer lamented the level of attention that the Office of the 

Secretary was giving to significant requests. In that same month, 

the Chief FOIA Officer informed the DHS Office of the General 

Counsel that staff involved in the review process had suggested 

inappropriate edits to FOIA release cover letters—edits that would 

have altered the information requesters received on appeal rights 

when FOIA denials were made. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 19
 
Through internal communications, Privacy Office managers shared 

process concerns on several occasions. In a February 2010 

memorandum, one manager wrote that review of requests in the 

Office of the Secretary is “a significant resource drain” for 

components, prompting delays in FOIA releases and loss of 

efficiency. These concerns were reiterated in April 2010: “The 

front office review process has significantly hampered the ability 

of DHS and its components to respond promptly to requests.” 

Other components did not experience notable delays or were less 

opposed to the review process. These FOIA officers said the 

review was designed to improve DHS awareness of major public 

requests, and added that records were released after review from 

the Office of the Secretary, although some cases were not released 

in a timely manner. No FOIA officer said that requesters were 

disadvantaged because of their political party or particular area of 

interest. Nonetheless, some FOIA officers who were less critical 

of the process expressed doubts about significant review, with one 

suggesting that the Office of the Secretary likely had more 

important work to do than review FOIA disclosures prior to 

release. 

Data From One Component Demonstrate That the Significant 

Request Review Process Added to FOIA Processing Times 

Components rarely tracked the time requests spent in the review 

process. The incomplete data we were provided support what 

component FOIA officers have suggested: There was wide 

variation in the time required to complete the review process. Staff 

in the Office of the Secretary assigned to review significant FOIA 

releases were responsible for various other tasks, which likely 

explains the inconsistent response time to FOIA cases. Also, some 

delays developed outside the Office of Secretary, as the Secretary’s 

Office forwarded certain requests to the Office of the General 

Counsel for additional review. 

For a short period, one component tracked the amount of time 

involved in the Office of the Secretary review of significant FOIA 

requests. Of the 53 cases monitored, which covered releases sent 

for review from March through July 2010, it took the Office of the 

Secretary an average of 15 business days to complete the review 

process. The component could not send the information to the 

requester until this review was completed. However, several cases 

among the 53 cases monitored were part of the review process for 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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far longer than the 15-day average. Of the 20 significant releases 

sent in March and April, three took more than 40 business days, 

with one case taking 46 days. Six other cases were in the review 

process between 30 and 40 days. Of the 53 cases, 15 spent more 

than 20 business days in the review process. 

In our interviews, several DHS FOIA managers stressed that the 

process was counter to the statute and the 2009 executive branch 

guidance. Different component experts declared that the process 

was “a disservice to the requester” that had “no added value” to 

DHS FOIA practices. 

FOIA officers can be concerned with delays even when only one 

case is affected, because of potential legal liability and the desire to 

serve requesters promptly. This was the view of components that 

had few significant requests during the process. One of these 

component’s FOIA officers said that the review process took more 

than 90 days in one case. 

The Significant Request Review Process Led to Negative Media 

Attention 

Even if the process had improved the department’s FOIA 

processing, the delays it caused, the July 2010 AP story, and the 

subsequent congressional scrutiny led to negative comments from 

the press and those interested in more disclosure under FOIA. The 

effort to improve “awareness” of significant requests actually 

increased negative attention from the media. 

We found several examples of media negativity. The review 

process also prompted a request to Inspectors General from 

Representative Issa and Senator Grassley to evaluate political 

appointees’ control over FOIA.18 

Additionally, an Internet blog associated with a newspaper 

declared that the review process meant the new administration was 

“no friend of FOIA,” while an Arizona Daily Star editorial stated 

that DHS actions were contrary to the “bedrock” of public 

information laws. Another editorial noted that the DHS policy was 

at odds with open government principles.19 

18 “House panel expands probe of information requests,” Washington Post (February 1, 2011),
 

http://grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=28447. 

19 “Obama administration no friend of FOIA,” Missoula Editor (July 22, 2010), 

http://missoulaeditor.com/?p=1799; Editorial, “Freedom of Information is a Public Right,” The Arizona 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Some websites were more negative, even to the point of being 

inaccurate. One used animation to show the Secretary placing 

some FOIA requests in the trash.20 As we have noted, the review 

process did not lead to the denial of eventual information 

disclosure. 

Sufficient Concern Existed for the Chief FOIA Officer To 

Recommend That the Secretary End the Review Process 

The information we received demonstrates that the review process 

created inefficiencies in the FOIA process. Such inefficient 

oversight of significant requests before release led to statutory 

noncompliance or prolonged delays in some cases. Additionally, 

various individuals who reviewed significant cases, including 

senior DHS officials, had little to contribute to the department’s 

disclosure program. As cases went unprocessed for weeks, the 

Chief FOIA Officer could have invoked 5 U.S.C. § 552(k)(3). 

Recommending changes to DHS FOIA practices would have 

informed the Secretary of problems related to the review process. 

The Chief FOIA Officer has improved the FOIA process at DHS. 

Components believe the Chief FOIA Officer deserves credit for the 

positive communication and open dialogue across the department’s 

FOIA offices. Components also believe that the Chief FOIA 

Officer’s staff deserves praise for their roles in improving DHS’ 

FOIA operations. To further improve the DHS FOIA program, the 

Chief FOIA Officer should develop a policy to use the (k)(3) 

authority on a regular basis. Doing so would give the Secretary 

information on what is needed to improve DHS FOIA operations. 

This is important because of the legal risks that exist under the 

statute, and because the President has declared that FOIA is “the 

most prominent expression of a profound national commitment to 

ensuring an open Government.” To support this determination, the 

Attorney General noted, “Timely disclosure of information is an 

essential element of transparency.” 

Based on information we received, the review process is still being 

used. Inefficiencies and time lags may therefore still exist when a 

FOIA request falls into that process. Further analysis by the 

Daily Star at A11 (July 23, 2010); “Political Scrutiny Tops at Homeland Security,” Grand Junction Daily 

Sentinel, July 22, 2010. 20 American Thinker (July 23, 2010), 

http://www.americanthinker.com/blog/2010/07/beware_if_you_make_an_foia_req.html. . 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Privacy Office could lead to specific (k)(3) recommendations on 

the discontinuance of this process, or perhaps changes to the 3- or 

1-day hold on issuing the response pending that review. 

We requested all documents related to the Chief FOIA Officer’s 

use of the (k)(3) authority. In addition to the DHS proactive 

disclosure memorandum, we received one July 2010 

memorandum, an analysis of the need for additional support to 

reduce the backlog in FOIA appeals. The Chief FOIA Officer said 

that an appeals backlog “presents a potential litigation risk and is 

not in keeping with the Administration’s aspirations and directions 

regarding compliance with FOIA.” This exact wording could have 

been used to recommend an end to the review process. 

Because the Chief FOIA Officer holds a vital position as advisor to 

the Secretary, routine use of (k)(3) reports would empower the 

Privacy Office and improve FOIA compliance across DHS. 

Recommendations under (k)(3) should be used to implement the 

President’s vision and reduce the department’s exposure to legal 

risk. Because the need for recommendations may fluctuate over 

time, a determination on the frequency of reporting should be at 

the discretion of the Chief FOIA Officer. 

Recommendation 

We recommend that the Chief FOIA Officer: 

Recommendation #4: Report as necessary to the Secretary, based 

on 5 U.S.C. § 552(k)(3), to recommend improvements to the DHS 

FOIA enterprise. 

Additional Guidance Is Needed on How DHS Will Make 

Discretionary Releases Under FOIA 

Some Office of the Secretary Personnel Misunderstood FOIA 

and the 2009 Executive Branch Guidance 

Even though the Office of the Secretary did not deny FOIA 

requests, legitimate concern exists when any process decreases the 

efficiency of FOIA processing. Such problems can lead to 

statutory noncompliance and a disregard of presidential directives. 

Based on the e-mail messages exchanged between the Privacy 

Office and the Office of the Secretary, we determined that some 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 23
 
staff in the Office of the Secretary involved in the review of 

significant requests did not have sufficient knowledge of FOIA. 

One case involved an individual’s interpretation of the Privacy 

Office’s August 2009 proactive disclosure memorandum. As 

noted previously, the memorandum was a positive step to expand 

the statutory requirement to make more documents available in 

DHS electronic reading rooms. Interpretations of this 

memorandum by personnel in the Office of the Secretary in one 

case detailed below were at odds with the OIG’s view of statutory 

intent and the 2009 executive branch guidance. [Exact quotation 

withheld.] 

This individual implied that the potential embarrassment of DHS 

should be considered when making proactive disclosure decisions. 

The expectation of greater disclosure is clear in the 2009 executive 

branch guidance, even though it is true that the President’s 

memorandum did not create new rights for persons or prevent the 

government from asserting necessary exemptions. FOIA is 

indisputably a disclosure statute, not a means for federal agencies 

to keep embarrassing information from the public. 

In another case, the statements of a senior official in the Office of 

the Secretary implied an effort to decrease the level of FOIA 

disclosure. In March 2009, 6 months before the review process 

began, the official suggested, “Nothing should be released” in a 

specific request for pre-decisional documents. In another instance, 

it was suggested that the department should send public 

information only to a particular requester. Government employees 

should undoubtedly ask questions and offer suggestions while a 

course of action is under consideration. This is the “deliberative 

process” in which government employees must engage in order to 

make reasoned decisions. Thus, the fact that these suggestions 

were not adopted as policy is significant. However, a FOIA 

manager expressed concern that the official’s suggestion could 

have led a component to limit the search for department records 

because the focus of the analysis was on withholding versus 

disclosing records. 

Other individuals in the Office of the Secretary had an incorrect 

view of what FOIA required. In the case of a right-wing 

extremism FOIA request, the DHS Office of Intelligence and 

Analysis did not redact the draft mission statement for the former 

Extremism and Radicalization Branch of the Homeland 

Environment Threat Analysis Division. The inclusion of this 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 24
 
information in the component’s proposed release raised concern on 

the part of a staffer reviewing the significant release. 

This instance demonstrated further misunderstanding of the FOIA 

process. Even though program experts and FOIA staff had already 

determined that the draft mission statement was responsive and 

that it should be released, there was a suggestion that the draft 

material should not become public simply because it was a draft 

document. The fact that a document is a draft is one factor in the 

deliberative process analysis, but not the only factor. Although we 

did not find evidence that the material was withheld, FOIA is a 

disclosure statute that requires release of information unless an 

exemption authorizes or requires the agency to withhold the 

records. Also, although agencies may make discretionary 

disclosures of records that fall under certain exemptions, changes 

in administrations over the years have resulted in varied 

applications of this authority. The 2009 executive branch FOIA 

guidance established that agencies should not withhold records 

simply because an exemption may apply, as FOIA decisions are to 

be made under a “presumption in favor of disclosure.” Thus, a 

suggestion to reevaluate a FOIA release in order to find a basis for 

withholding when the release had already been determined to be 

required under FOIA, does not appear to be consistent with these 

guidelines. Again, government employees should freely question 

proposed decisions as part of the deliberative process. However, 

doing so without a clear understanding of FOIA adds little to the 

agency’s decision-making process and delays the FOIA response. 

Additional Information May Have Been Appropriate for 

Release to the AP Regarding the Significant Request Review 

Process 

In January 2010, the AP submitted a FOIA request for information 

about the department’s FOIA review process. We examined the 

FOIA release to gain an understanding of how exemptions were 

applied. While the bulk of the redactions undoubtedly were 

appropriate, we are concerned that certain statements may have 

been withheld from the AP release merely to avoid embarrassment 

to the department, which is not appropriate under FOIA, and 

certainly not under the 2009 executive branch guidance. The 

Privacy Office had minimal participation in the AP release, since 

most of the requested e-mails included Privacy Office staff. 

Instead, the DHS Office of the General Counsel made the 

redaction decisions. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 25
 
 

 

The redactions we questioned were generally made under FOIA 

Exemption 5, which covers “memorandums or letters which would 

not be available by law to a party other than an agency in litigation 

with the agency.”21 The exemption protects information that is 

normally privileged in civil discovery.22 Among other privileges, 

courts have determined that agencies can protect deliberative 

processes so as not to “stifle honest and frank communication 

within the agency” and to protect “the consultative functions of 

government.”23 Case law suggests that “advisory opinions, 

recommendations, and deliberations comprising part of a process 

by which governmental decisions and policies are formulated” can 

be protected.24 Exemption 5 can protect agency discussions on predecisional matters so that employees can provide advice without 

concern for public disclosure. 

Even before the 2009 executive branch guidance, judicial decisions 

interpreting deliberative process under Exemption 5 required 

agencies to evaluate pre-decisional materials under various factors 

in order to determine whether the privilege applied. In 1975, a 

U.S. Appeals Court made points that remain valid. “[P]redecisional materials are not exempt merely because they are predecisional,” the court noted. “[T]hey must also be a part of the 

agency give-and-take of the deliberative process—by which the 

decision itself is made.”25 This means that Exemption 5 does not 

protect all pre-decisional agency documents, and specifically, that 

the pre-decisional nature of a document alone is not enough to 

justify withholding release under FOIA. 

This is especially important when considering the 2009 executive 

branch guidance. In the updated version of the Guide to the 

Freedom of Information Act, the Department of Justice wrote, “[I]t 

is important to first note that the President and Attorney General 

have issued memoranda to all agencies emphasizing that the FOIA 

reflects a ‘profound national commitment to ensuring an open 

Government’ and directing agencies to ‘adopt a presumption in 

favor of disclosure.’”26 

21 5 U.S.C. § 552(b)(5).
 22 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). 23 Id. at 149; Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). 24 In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). 25 Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). 26 U.S. Department of Justice Guide to the Freedom of Information Act at 357 (Government Printing 

Office, 2009). 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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In addition to this general advice applicable to all FOIA releases, 

April 2009 DOJ guidance suggests that pre-decisional material is 

suitable for discretionary disclosure: 

There is no doubt that records protected by Exemption 5 hold 

the greatest promise for increased discretionary release under 

the Attorney General’s Guidelines. Such releases will be 

fully consistent with the purpose of the FOIA to make 

available to the public records which reflect the operations 

and activities of the government. Records covered by the 

deliberative process privilege in particular have significant 

release potential. In addition to the age of the record and the 

sensitivity of its content, the nature of the decision at issue, 

the status of the decision, and the personnel involved, are all 

factors that should be analyzed in determining whether a 

discretionary release is appropriate.27 

Public data from the Privacy Office demonstrate that the 

department’s use of Exemption 5 has grown considerably, even 

though total FOIA requests have declined. In 2006, the department 

received 137,871 requests, with 33,705 uses of Exemption 5. For 

2009, the comparable numbers were 103,093 and 59,510. Thus, 

while total FOIA requests decreased by 25%, the use of Exemption 

5 increased by 77%. In FY 2010, use of the exemption decreased, 

but remained high compared to historical standards. The 

department received 130,098 requests, and Exemption 5 was used 

in 41,828 instances. These numbers in isolation may not be cause 

for concern, especially since the types of records requested will 

largely determine whether Exemption 5 applies to particular 

records. Nevertheless, in the context of the Office of the 

Secretary’s previous involvement in the FOIA process, the 

numbers help to suggest that additional clarification on the 

requirements of FOIA is justified. 

The DHS release of information to the AP provides examples in 

which we question whether DHS fully implemented the 

presidential vision for greater release of deliberative process 

material. We are not quoting from these materials because the 

material was redacted. Although there were some efforts to 

change FOIA responses, we could not substantiate that such 

changes were made before information was released. 

27 http://www.justice.gov/oip/foiapost/2009foiapost8.htm. 

The DHS Privacy Office Implementation of the Freedom of Information Act 

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Potentially embarrassing wording was redacted in other cases as 

well. In November 2009, a senior DHS official suggested 

limitations on the release of a particular request that a component 

was processing. Additional redactions were made in some 

instances where FOIA managers expressed frustration with the 

review process. The 2009 executive branch guidance could 

reasonably be interpreted to suggest release of these statements. 

These comments were made after the Office of the Secretary had 

already established the review process. Redaction of such 

statements was not based on an understanding that the purpose of 

the deliberative process privilege was to “prevent injury to the 

quality of agency decisions.”28 These post-decisional comments 

were not made in a deliberative context to those who could change 

the policy. Assuming these statements were responsive to the 

FOIA request, and no other exemption applied, we believe that 

release of the statements, rather than redaction, would have been 

more appropriate based on the 2009 executive branch guidance. 

Our conclusions about certain AP redactions reflect a difference of 

opinion with the department on a limited number of choices that 

were made with this FOIA release. Any statements we make about 

the AP release do not mean that we have concluded the department 

acted in an unlawful manner. Nor do we suggest that the use of 

Exemption 5 across DHS is incorrect or even that every use in the 

AP release is worrisome. The AP’s FOIA request was not known 

to us during the planning phase for this inspection. The content of 

the release is directly relevant to the review process, which became 

a major focus of this report. Thus, a detailed review of that FOIA 

release and the hundreds of redactions made therein—in the 

context of evaluating the FOIA review process—was appropriate. 

To ensure the fullest possible respect for the 2009 executive branch 

guidance, the Chief FOIA Officer should recommend that the 

Secretary issue instructions on the use of redactions. This 

guidance should clarify that departmental interests under 

Exemption 5 must be balanced, and that Exemption 5 is not 

designed to shield embarrassing or controversial words from public 

scrutiny. Policy statements such as the 2009 executive branch 

guidance, in conjunction with established case law, must govern 

redaction decisions under FOIA. A policy statement from the 

Secretary would express the sentiment that DHS fully embraces 

the President’s vision for FOIA releases. We have noted the 

positive work that the Privacy Office initiated after the 2009 

28 NLRB v. Sears, 421 U.S. 132, 151 (1975). 

The DHS Privacy Office Implementation of the Freedom of Information Act 

Page 28
 
 

executive branch guidance, and efforts to enlist the Secretary’s 

support for additional transparency would promote the 

department’s adherence to the new FOIA paradigm. 

Recommendation 

We recommend that the Chief FOIA Officer: 

Recommendation #5: Use the authority at 5 U.S.C. § 552(k)(3) to 

recommend to the Secretary that the Secretary issue written 

guidance to the department on the President’s reiteration that 

embarrassment, abstract fears, and the exposure of failure are not 

grounds to exempt information under FOIA. 

Recommendations Under the (k)(3) Authority Are Necessary To 

Improve DHS FOIA Staffing 

Some FOIA officers we interviewed expressed concern about 

inadequate staffing. Even FOIA officers who believed that staffing 

was sufficient said problems would arise if FOIA requests 

increased. Several component FOIA officers said that progress 

with proactive disclosures has suffered because of the need to 

focus resources on incoming requests. Interviewees suggested that 

additional FOIA staff would allow for concentration on backlog 

reduction and more proactive disclosure. 

The Privacy Office has detailed staff to other components when 

staffing needs arose, but this is not a permanent solution to agency 

staffing concerns. Two interviewees suggested that the department 

could detail existing FOIA staff to other components that needed 

assistance. A short-term alternative to additional funding or 

detailees would be the formation of a task force or working group 

to address staffing needs and render assistance throughout the 

department on an as-needed basis. 

At 103,093 requests, DHS had the most FOIA requests in the 

federal government in FY 2009, the last year full data for the entire 

government are available. Managing the backlog for such a busy 

FOIA operation can be difficult. In January 2010, the 

department’s backlog was 12,406 requests. The backlog increased 

to 17,319 requests in June 2010, a 39.6% increase in 6 months. 

The backlog by the end of FY 2010 fell to 11,383. 

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In March 2010, the White House issued a memorandum to agency 

and department heads requesting that they take certain steps to 

implement the President’s 2009 FOIA guidance. One of those 

steps was to assess the level of resources for FOIA processing to 

ensure prompt responses and cooperation with requesters. We 

received data that substantiated the department’s effort to hire 

additional FOIA staff. At the end of FY 2010, DHS had 420 fulltime FOIA staff, an increase of 40 positions in 1 year. 

Nonetheless, nine DHS components reported an increase in their 

FOIA backlog during FY 2010. 

Even with the efforts to increase staff and reduce FOIA backlogs, 

the department’s FOIA caseload can still be difficult to manage. In 

an April 2010 internal memorandum, the Director, Disclosure and 

FOIA, noted that other departments’ staffing resources exceeded 

those of DHS. This prompted a recommendation that several 

components should have additional FOIA personnel. The 

department should ensure that the FOIA staffing issue remains a 

focused area of study, especially since backlog reductions fluctuate 

throughout the year. Staff may also be necessary to focus 

resources on proactive disclosure. 

Recommendation 

We recommend that the Chief FOIA Officer: 

Recommendation #6: Study and make recommendations to the 

Secretary regarding FOIA staffing levels. 

Management Comments and OIG Analysis 

The Privacy Office and DHS Office of General Counsel submitted 

a consolidated response to our report. We have made changes to 

the report where we deemed appropriate. A copy of the 

department’s response, in its entirety, is included as Appendix B. 

We also received technical comments from the department, and we 

have made corrections to the report based on these comments. 

The department concurred with each of our six recommendations. 

The formal response to our report included concerns about specific 

OIG methodologies and conclusions, as well as a management 

response to each recommendation. Our analysis of the DHS 

response to the recommendations follows a brief discussion of the 

department’s concerns. 

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Our report fully respects the right of the Secretary to direct and 

control DHS. Positive change can result when the Office of the 

Secretary reviews and coordinates component activities. This has 

been particularly useful to our office when we issue reports that 

involve multiple parts of DHS. 

It is appropriate that the Secretary oversee the DHS FOIA 

program. It is also appropriate that there be internal debate among 

DHS employees about DHS programs, and FOIA processing is no 

exception. We simply determined that the unprecedented scope of 

the review process, and specifically the 2009 decision to hold 

releases to requests deemed significant until the review was 

completed, created various inefficiencies and delayed some 

releases. Because the department stopped most parts of the 

process after less than a year of operation, including a change as of 

March 28, 2011, to reduce the 3-day hold to a 1-day hold, we 

conclude that the Office of the Secretary agrees that the review 

process was unworkable as formerly executed. 

We also fully respect the intent of FOIA Exemption 5. Case law 

and the 2009 executive branch guidance have established that a 

statement is not subject to protection under Exemption 5 simply 

because it is pre-decisional. Whether a redaction can or should be 

made are two different analytical questions. The President’s 

January 2009 guidance on FOIA, and DOJ policies issued in 

response to it, are clear on this. Because the department concurs 

with each of our recommendations, we believe the difference of 

opinion is not as serious as one might infer from some parts of the 

management response. The OIG will continue to seek the most 

efficient and effective policies across DHS, and we are pleased that 

the department respects that role. 

Recommendation #1: That the Chief FOIA Officer develop 

additional internal policies regarding proactive disclosure to ensure 

consistency across components and quicker posting of information. 

Management Response: The department concurred with 

Recommendation #1. The Privacy Office noted the various 

enhancements the department has made in proactive disclosure. 

The department’s electronic reading rooms include more than 

10,000 pages of documents, and new publications are released 

every week. Further work to address this important area, through 

collaboration with component FOIA officers, is ongoing. The 

Privacy Office anticipates that it will have a department-wide 

procedure by December 2011. 

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OIG Analysis: The department has made progress in proactive 

disclosure. As noted by the Chief FOIA Officer, the department 

has continued to improve proactive disclosure, and we determined 

that the progress is ongoing. We appreciate the past focus on this 

issue, which is central to an agency’s disclosure program. The 

recommendation is resolved and open. 

Recommendation #2: That the Chief FOIA Officer formalize the 

roles and responsibilities of the Public Liaison. 

Management Response: The department concurred with 

Recommendation #2. The Chief FOIA Officer and Deputy Chief 

FOIA Officer will work with the Public Liaison to further clarify 

the position’s important role. The Chief FOIA Officer and Deputy 

Chief FOIA Officer, together with the Public Liaison and the 

component FOIA officers, will review the roles and 

responsibilities of the Public Liaison. The Privacy Office 

anticipates that it will accomplish this goal by September 30, 2011. 

OIG Analysis: As with proactive disclosure, the department will 

be able to build on past progress and the positive relationships that 

the Public Liaison has created. The planned study of the position’s 

role is an excellent opportunity to work with components and the 

public to make the department’s use of the public liaison role a 

model for other federal agencies. The recommendation is resolved 

and open. 

Recommendation #3: That the Chief FOIA Officer implement an 

internal review function to assess department-wide FOIA 

operations on a regular basis to maximize efficiencies and improve 

the administration of the department’s FOIA operations. 

Management Response: The department concurred with 

Recommendation #3. The Chief FOIA Officer and Deputy Chief 

FOIA Officer intend to develop a collaborative internal review 

process over the next several months. 

OIG Analysis: We are pleased that the Privacy Office views an 

internal review program as a means to accomplish ongoing FOIA 

program improvement. Because of the department’s positive 

reputation with components, we share the conclusion that the 

process will be collaborative and respectful of component equities. 

We anticipate that the Privacy Office will develop a successful 

review protocol. A focus on the quality of FOIA response letters is 

an obvious first area of review. This would allow the department 

to improve the effectiveness of its disclosure program while 

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gaining further public confidence. The recommendation is resolved 

and open. 

Recommendation #4: That the Chief FOIA Officer report as 

necessary to the Secretary, based on 5 U.S.C. § 552(k)(3), to 

recommend improvements to the DHS FOIA enterprise. 

Management Response: The department concurred with 

Recommendation #4. The Chief FOIA Officer intends to develop 

recommendations to the Secretary on an as-needed basis. The 

specific timing of recommendations has not been determined. 

OIG Analysis: We are pleased that the department understands 

the utility of the (k)(3) process. The yet undetermined frequency 

of the recommendations is appropriate. We suggest that the Chief 

FOIA Officer develop a formalized policy on use of the authority, 

even if the timing of particular recommendations is not known. 

Provision of a new (k)(3) policy under the corrective action 

process would be sufficient to close the recommendation. The 

recommendation is resolved and open. 

Recommendation #5: That the Chief FOIA Officer use the 

authority at 5 U.S.C. § 552(k)(3) to recommend to the Secretary 

that the Secretary issue written guidance to the department on the 

President’s reiteration that embarrassment, abstract fears, and the 

exposure of failure are not grounds to exempt information under 

FOIA. 

Management Response: The department concurred with 

Recommendation #5. The Privacy Office has issued 

memorandums on FOIA exemptions and the 2009 executive 

branch guidance. Further analysis of the need for additional 

support to DHS components will occur. The Privacy Office also 

plans a systematic review of Exemption 5 usage. 

OIG Analysis: During our inspection, we observed several 

positive efforts that the Privacy Office has made to inform 

components about FOIA policy. As with the meaningful work in 

other areas, we foresee potential for additional collaboration across 

DHS on the important realm of increasing transparency, as 

mandated by the President. The review of Exemption 5 usage 

should augment ongoing work on exemption policy development. 

Further details about new exemption policy guidance, especially 

the memorandum to the Secretary on the use of (b)(5), would help 

to close this recommendation. The recommendation is resolved 

and open. 

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Recommendation #6: That the Chief FOIA Officer study and 

make recommendations to the Secretary regarding FOIA staffing 

levels. 

Management Response: The department concurred with 

Recommendation #6. The Privacy Office has analyzed FOIA 

staffing. Future work to evaluate staffing levels will build on 

previous efforts. New conclusions regarding staffing could then 

lead to recommendations to the Secretary on FOIA staffing levels 

across DHS. 

OIG Analysis: The Privacy Office has outlined a credible 

approach to this matter. We did not recommend new staff in any 

component because the Chief FOIA Officer can collaborate with 

FOIA officers across the department to determine the possible 

need for and frequency of staffing recommendations to the 

Secretary. The recommendation is resolved and open. 

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Appendix A 

Purpose, Scope, and Methodology 

We undertook this review based on our interest in the department’s 

compliance with the Freedom of Information Act since the 2009 

executive branch guidance was issued. We reviewed presidential 

directives, information produced by DOJ’s Office of Information 

Policy, legal cases, and DHS policies and data on FOIA 

implementation. The review focused on how the Privacy Office 

works on FOIA implementation with components, as well as how 

the significant request review process affected the DHS FOIA 

enterprise. We did not examine the FOIA appeals process. 

We did not examine component FOIA decisions, except for the 

redactions made to information that was provided to the 

Associated Press after a request for e-mail messages related to the 

review process. Under normal circumstances, our reports might 

include direct quotations from departmental records. We did not 

include all quotations that support our findings, however, because 

some of these statements have been redacted by the department in 

responding to a FOIA request that is currently pending under the 

DHS FOIA administrative appeals process. 

We conducted 21 interviews, which included discussions with staff 

from 11 DHS components that process FOIA requests, as well as 

with FOIA experts inside and outside of the federal government. 

We selected these interviewees to ensure a range of perspectives 

based on both the size of the component’s FOIA caseload and 

subject matter expertise. The Office of Inspector General, like 

other DHS components, responds to FOIA requests. This report 

describes DHS FOIA policies and procedures with which we also 

comply. 

We conducted this performance inspection between July and 

September 2010 pursuant to the Inspector General Act of 1978, as 

amended, and according to the Quality Standards for Inspections 

issued by the Council of the Inspectors General on Integrity and 

Efficiency. 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix C 

FOIA’s Statutory Exemptions and Exclusions 

Abbreviated Descriptions 

See 5 U.S.C. § 552(b)(1) through (b)(9) for the full text of the exemptions and (c)(1) 

through (c)(3) for the full text of the exclusions. 

Exemption Number Matters That May Be Exempt From Disclosure Under FOIA 

1 Classified national defense and foreign relations information 

2 Internal agency personnel rules and practices 

3 Information that is prohibited from disclosure by another federal 

law 

4 Trade secrets and other confidential business information 

5 Inter-agency or intra-agency communications that are protected 

by legal privileges 

6 Information involving matters of personal privacy 

7 Certain information compiled for law enforcement purposes 

8 Information relating to the supervision of financial institutions 

9 Geological information on wells 

Exclusion Number Matters That May Be Excluded From the Reach of FOIA 

1 Authorizes federal law enforcement agencies, under specific 

circumstances, to shield the very existence of records of ongoing 

investigations or proceedings by excluding them entirely from 

FOIA’s reach 

2 Provides that “whenever informant records maintained by a 

criminal law enforcement agency under an informant’s name or 

personal identifier are requested by a third party..., the agency 

may treat the records as not subject to the requirements of 

[FOIA] unless the informant’s status as an informant has been 

officially confirmed” 

3 Pertains only to certain law enforcement records that are 

maintained by the Federal Bureau of Investigation 

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Appendix D 

2009 Executive Branch Guidance 

Figure 1. January 21, 2009, President’s Memorandum on FOIA 

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Appendix D 

2009 Executive Branch Guidance 

[http://edocket.access.gpo.gov/2009/pdf/E9-1773.pdf] 

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Appendix D 

2009 Executive Branch Guidance 

Figure 2. March 19, 2009, Attorney General’s Memorandum on FOIA 

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Appendix D 

2009 Executive Branch Guidance 

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Appendix D 

2009 Executive Branch Guidance 

[http://www.justice.gov/ag/foia-memo-march2009.pdf] 

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Appendix E 

Major Contributors to this Report 

Douglas Ellice, Chief Inspector 

Darin Wipperman, Team Lead Inspector 

Traci Quan, Senior Inspector 

Kimberley Cox, Inspector 

Alexis Lavi, Intern Inspector 

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Appendix F 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff 

General Counsel 

Executive Secretariat 

Director, GAO/OIG Liaison Office 

Assistant Secretary for Office of Policy 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

Chief FOIA Officer 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees, as 

appropriate 

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ADDITIONAL INFORMATION AND COPIES 

To obtain additional copies of this report, please call the Office of Inspector General (OIG) at (202) 254-4100, 

fax your request to (202) 254-4305, or visit the OIG web site at www.dhs.gov/oig. 

OIG HOTLINE 

To report alleged fraud, waste, abuse or mismanagement, or any other kind of criminal or noncriminal 

misconduct relative to department programs or operations: 

• Call our Hotline at 1-800-323-8603; 

• Fax the complaint directly to us at (202) 254-4292; 

• Email us at DHSOIGHOTLINE@dhs.gov; or 

• Write to us at: 

DHS Office of Inspector General/MAIL STOP 2600, 

Attention: Office of Investigations - Hotline, 

245 Murray Drive, SW, Building 410, 

Washington, DC 20528. 

The OIG seeks to protect the identity of each writer and caller.