President Barack Obama has declared that his administration will demonstrate a “culture of transparency,” but the Department of Homeland Security apparently failed to get the memo. Last week, the agency offered Roll Call an unusual response to a Freedom of Information Act request: Buzz off.
In a Kafkaesque series of letters and telephone conversations, U.S. Customs and Border Protection explained that it would not release the names of people flying on government aircraft until Roll Call got those people to sign a waiver allowing customs to release their names.
That’s right. Roll Call requested passenger manifests for flights on government airplanes. Customs replied that “DHS regulations require, in the case of third party information requests, a statement from the individual verifying his or her identity and certifying that individual’s agreement that records concerning him or her may be accessed, analyzed and released to a third party. Because you have not provided this documentation with your request, we are unable to initiate a search for responsive records.”
In other words, we are prohibited from telling you who those people are until you contact them and get them to authorize us to tell you who they are.
Customs helpfully went on to note that “this is not a denial of your request” but simply a notice that Roll Call’s request was deficient and cannot be processed. And since it is not a denial, it can’t be appealed.
This didn’t seem like a reasonable outcome, so we called for a clarification.
“Why do you need that information?” the customs FOIA officer asked. “You don’t need to know those people’s names.”
But it is a government airplane, and this is taxpayer-funded travel. Shouldn’t we be allowed to know who is flying on the taxpayer’s dime?
“Are you calling as a taxpayer?”
Actually, no we are a newspaper, seeking information for a news story. “Well we can’t give that to you because it’s private information,” she said.
Roll Call is choosing not to identify this FOIA officer by name in part out of an abundance of courtesy and in part because we have reason to believe that she provided us a fake name.
The official, written reply — which is also unsigned — indicated that customs had not even begun a search for responsive records because of Roll Call’s failure to provide documentation of the waivers.
But customs doesn’t need to search for responsive records. The Air Force has already located them.
Roll Call had requested documents from the Air Force about planes it operates, and the Air Force replied that one page of responsive documents was in customs’ jurisdiction, so that portion of Roll Call’s request was being sent to customs “for processing and direct response to you.”
An entertaining side note to the customs’ response is that the Air Force simultaneously responded by sending Roll Call a CD containing hundreds of pages of similar records. But because of a technical error, the disc was blank. So while customs was saying it couldn’t honor our request, the Air Force was granting our request by sending nothing.
Meredith Fuchs, general counsel of the National Security Archive, said customs’ response to Roll Call “is ridiculous.”
“That’s crazy,” Fuchs said. “This is a reflexive thing that agencies do to discourage people from making FOIA requests.” Fuchs noted that FOIA does contain an exemption that prevents the government from releasing information that would constitute an invasion of “personal privacy,” but that privacy protection doesn’t apply to Members of Congress and other public officials likely to be taking official CBP trips.
“They can’t tell you that there is a privacy interest that prevents you from knowing which Members of Congress have flown on government airplanes,” Fuchs said.
In addition, FOIA experts explain that the CBP would have to first identify who was on the plane, then decide whether releasing their names would be a privacy issue. The agency can’t use hypothetical privacy concerns as an excuse to not search for responsive documents.
Contacted about this story Friday, two CBP officials apologized for the agency’s response and said that apparently after the rejection letter was mailed, the office changed course and is in fact now working on Roll Call’s request. But because of the looming snowstorm, the office was largely empty Friday morning and the file on the request could not be located.
David Sobel, senior counsel at the Electronic Frontier Foundation, said Roll Call’s experience highlights the “total disconnect there is between what the people at the highest levels are saying in terms of the rhetoric and the reality on the ground at an agency’s FOIA office.”
Obama has said the government should have a culture of transparency, “but the agency is essentially saying Go away. Don’t bother us,'” Sobel said.
He said it is not entirely surprising that the response came from the CBP. “They are one of the most problematic agencies that I have dealt with recently” on FOIA issues.