Department of Homeland Security to PowerTalk 1210: “This is not a denial”

You gotta love government bureaucrats.  Who else could figure out how to keep you in the dark while denying they’re doing so?

If the government had had its way, chances are you would never have known about the wave of illegal immigrants that began flooding across our borders this summer.  The Border Patrol made no announcement.  Neither did its umbrella agency, the Department of Homeland Security.  They simply began dropping off single immigrant mothers with children at bus stops—including Tucson’s Greyhound station.  They didn’t bother to notify local agencies, much less alert the media or the public at large.  We only found out because alert reporters glommed onto the fact that agents were dumping off the immigrants without food or water.

Now, several months down the road, questions remain.  How many immigrants, precisely, did the government put on buses?  According to media reports, some actually received plane rides to the bus stations.  How many jetliner tickets are we talking about?  How much did Uncle Sam spend on all this?  The illegal immigrants got a free pass to go wherever they wanted, under the promise that they would report to immigration authorities once they arrived at their final destinations.  How many did so?  These questions remain because CPB and DHS have kept that information from you.

In August I tried to get answers by phone.  That’s when I learned that yes, DHS has a press office, but no, members of the press can’t have the number.  Instead, media must submit inquiries by email and then hope for a call back.  The obvious beauty of this is that emails are so much easier to blow off than a live phone call (can you say, “da-LEET”?)  And that’s exactly what happened to me.  My attempts to get information this way resulted in an hilarious conversation with a flunky in a lower office who suggested that perhaps my email inquiry might stand a better chance of getting a response if I were to put key passages in bold text, which I then proceeded to do.  (I wrote about this over the summer—to refresh yourself on that high hilarity and mirth, follow this link.)

When those efforts scored a giant goose egg, I filed formal requests for answers under the Federal Freedom of Information Act.  I filed knowing full well that the attempt was doomed to failure.  Obviously, if the government wanted this information out, it’d be out, right?  But I went through the process anyway knowing it would give me something to write about on this blog and bloviate about on the radio.  And so I was neither surprised nor disappointed when I received the email that popped into my mailbox this morning informing me that my request had received “final disposition”—without telling me what that disposition was.  (No, I’m not making this up or exaggerating in any way.  Read on.)

The details of the filing process and the responses I got along the way provide stunning insight into the mind of the bureaucrat—in other words, more moments of wry amusement.  And as I relate them in chronological order, remember that these are your tax dollars at work (assuming, that is, you are among the minority of Americans who now pay those).

On August 8, I filed three FOIA requests.  I submitted two of them online via the Customs and Border Protection portal set up for that purpose.  The first request sought information from the people keeping records about border encounters.  The second sought the same information from the keepers of immigrant travel records.  I filed them that way because the form indicated that these were separate departments.  I also mailed a third request, similar to the first two, in writing to the U.S. Customs and Immigration Service (the text of the requests is pasted below).  Both of the electronic requests received acknowledgements and were assigned tracking numbers.  The written request received no acknowledgement of any kind.

Six weeks later, on September 12, I received a notice via email that one of the two requests (CBP-2014-039629, to be precise) was being closed due to the fact that it was a duplicate.  Actually, CBP-2014-039629 was the original; the request that was left open (CBP-2014-039630) was the duplicate and I had so marked it, but never mind.

On that same date, I received notice that the surviving electronic request was having its tracking number changed—from CBP-2014-039630 to CBP-OBP-2014-039630.  Okay, fine.  The explanation for the change?  The email said:  “This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it.”

You may be curious, as I was, what OBP in the new tracking number stands for.  It stands for “Office of the Border Patrol.”  Presumably, the handlers who’d canceled my request for information related to border encounters on the grounds that it was a duplicate were now routing my request to the people who actually had information about border encounters, as I had originally requested.  (Recall what I said about your tax dollars at work.)

The very next day, I received a notice that the handlers were changing the tracking number yet again, from CBP-OBP-2014-039630 to CBP-2014-039630.  If you look closely (all the digits initially made my eyes cross) you’ll see that the bureaucrats had changed the tracking number back to what it had been in the first place.  The explanation?  “This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it.”  Likely interpretation:  The Office of the Border Patrol had bounced my request right back to Customs and Border Protection and had told them to deal with it and quit trying to shove hot potatoes onto someone else’s desk.

This morning (September 16 as I type this) I received an email with the subject line, “Final Disposition, Request CBP-2014-039630.”  In the body of the email was no message of any kind.  Nor was there an attachment.  So, I replied and pointed this out.

That resulted in this emailed response:  “Thank you for contacting the CBP FOIA Division. This email address is no longer accepting email correspondence.  To submit a FOIA request online, check status of an exisitng [sic] FOIA request, or to download responsve [sic] records from the CBP FOIA Reading Room, please visit the CBP FOIA Internet Web at www.cbp.gov/foia.”

I particularly enjoyed that.  It gave me the bureaucratic heave-ho I had fully anticipated while also serving as an unexpected and delightful indictment of the American system of education.  Very cool.

So, I went back to the portal I’d used to file the requests in the first place and signed in.  I did not at first see anything on the screen for either file other than labels saying “Closed.”  But after digging through to a second screen, scrolling to the bottom, and putting on my higher-powered reading glasses, I found a single document listed under a heading that read “released records.”  The “released record” turned out to be a letter stating why there would be no released records.  The full text of it is pasted below.  But the gist of it is that no records would be provided to me because my request had been “too broad.” 

What would make it less broad?  The letter was very helpful in that regard.  For each document requested, I should provide, it read, “the date, title or name, author, recipient, and subject matter of the record.” 

It’s a stroke of pure genius.  To get the document, all you have to do is have the document in your hands so you can read off the information needed to obtain the document.  I was breathless with awe and admiration.   Judges’ score in the Olympic Bureaucratic Stiff-Arm Event:  a unanimous 10 out of 10.

But never let it be said the author (who did not indicate nor sign his/her name) was not trying to be helpful.  “See Title 6 C.F.R §5.21(b),” the letter went on to say.  Bureaucrats.  What are you gonna do?

My favorite part of the letter, though, was this statement, written and presented (I presume) with a straight face:  “This is not a denial of your request.”  The letter went on to say that should I provide a “perfected request,” I would then “be advised as to the status of your request.”

More genius.  My efforts were fruitless, but emotionally I’m not even allowed to feel rejected at this point.  I haven’t been denied.  See?  The system works.  “We’re your government, and we’re here to help.”

As it turns out, there’s an appeals process for rejected requests.  Since the government assures me mine was not rejected, I’m not sure the process applies in my case, and it probably doesn’t.  But, unbridled optimist that I am, and since the appeals button was not disabled, I availed myself of the filing procedure anyway.  I wrote a few paragraphs outlining and summarizing the points above, and in closing, added this: 

“In support of this request, I direct your attention to president Obama's memorandum on ‘Transparency and Open Government,’ now posted on whitehouse.gov, the first paragraph of which reads:  ‘My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.’  In good faith, I am seeking on behalf of PowerTalk 1210 and our Tucson radio listeners the transparency and collaboration the President promised.”

What do you think?  While waiting for a response, should I hold my breath?  No?

The letter also invited me to contact the FOIA office by phone.  Wow.  An actual phone number.  That did impress me.  So I dialed it.  Care to guess what happened?  What do you think happened?  I got voice mail.  Dutifully, I left a detailed message.  Two, in fact, following both branches of the voice mail tree that were offered.  Care to lay odds on my chances of getting a response?  Hint:  I’m still waiting for a response to the last voice mail message I left with DHS six weeks ago.

It’s funny, but really, it’s not.  It doesn’t matter where you stand on immigration—legal or otherwise.  In our country, the people are supposed to be sovereign.  Government is administered for the benefit of the governed, not for the benefit of the bureaucrats or the politicians.  If the information I’m seeking reflects well on the administration, it’s hard to imagine it would be withheld.  I’m much more inclined to believe the data do not put the administration in a good light, and that it’s withholding the numbers for the same reason the President has delayed announcing his latest executive orders to protect more illegal immigrants and reduce deportations:  he and his party fear the news will adversely affect the fortunes of Democrats in the November mid-term elections.

Maybe I’m wrong to be suspicious of the Obama administration’s motives.  Maybe this information is secret not as the result of any notion that the public can’t handle the truth or can’t be trusted with it, but merely because of bureaucratic indifference and incompetence.  There has been no shortage of either in this administration. 

But I don’t care the reason.  You and I deserve these answers.  This administration’s actions to keep us in the dark—regardless of motives—do not serve democracy.  This is not the way government in our country is supposed to work, and it’s contrary to the spirit of open government this President promised us.  In writing.

Supporting documents are below.  Enjoy.  (I know I did).

August 4, 2014:  The body of my initial FOIA requests (the text was similar for each of the three requests):

I am a member of the news media and am inquiring into the handling of undocumented migrants amid the current immigration crisis.  Specifically, on behalf of the PowerTalk 1210 on-air team, I am looking for documents shedding a light on the handling of undocumented unaccompanied minors and also undocumented women with children from May 2014 through the present date (August 4).  I regret that I do not have information on what documents might be in existence.  I am seeking:

Any and all intra-agency emails on the subject of how to handle the aforementioned migrants, particularly as it pertains to detentions, the terms under which some migrants have been released, any discussions of policy relevant to these matters.

• Any and all correspondence between USCIS employees and administrators and elected or appointed officials regarding these matters.
• Any and all receipts or other documents related to expenditures for the transportation and care of such migrants.
• Any and all emails, letters or other documents related to undocumented migrants checking in with immigration authorities at their final destination, as they have been ordered to do.  (Note:  we are particularly interested in knowing how many immigrants have checked in as ordered).
• Any and all documents containing statistics related to how many unaccompanied children are being released and the categories of people to whom they are being released (relatives, non-related sponsors, etc).
• Any and all documents reflecting costs to USCIS for the transportation and detention of undocumented foreign nationals in this period.
• Any and all documents reflecting the amount of donated goods and services provided to USCIS by private citizens and local communities in response to the influx of migrants.

I am not seeking the private records of any individual immigrants or immigrant applicants.

Electronic format is greatly preferred for the documents requested.

My signature indicates my consent to pay for costs incurred in search and duplication up to $50.

Thanks in advance for your attention to this matter.

Forrest Carr

PowerTalk 1210

September 16, 2014:  Rejection letter (on U.S. Customs and Border Protection Letterhead)

Dear Mr. Carr:

This is in reply to your request to U.S. Customs and Border Protection (CBP).    

Upon review of your FOIA request, it has been determined that your description is too broad.

You have requested documents regarding the handling of undocumented, unaccompanied minors and undocumented women with children from May 1, 2014 through August 4, 2014.

Please be advised Department of Homeland Security (DHS) regulations require you to describe the records that you seek in enough detail to enable Departmental personnel to locate them with a reasonable amount of effort.  Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record.  See Title 6 C.F.R §5.21(b).

This is not a denial of your request.  Upon receipt of a perfected request, you will be advised as to the status of your request. 

Your request has been assigned reference number CBP-2014-039630.  Please refer to this identifier in any future correspondence.  You may contact this office at (202) 325-0150.

FOIA Division

[no signature was provided, nor was the name of the writer]

September 16, 2014:  Text of my appeal of the rejection

Hi --as I indicated in my FOAI request, I am interested in learning certain information about the recent wave of illegal immigration that has, to date, been withheld from the public.  I initially tried to get this information by phone from the Homeland Security Press office.  When calls were not returned, I filed FOIA requests.  Now those requests have been turned down on the grounds that they are too broad.  The rejection letter states that I must provide specific information about the documents requested including author, date, title, etc.  If I had this information in my hands I would have the documents themselves in my hands and would not need to file a request to get them.

The information I'm looking for is pretty simple.  Boiled down to its simplest components, I'm looking to find out how many illegal immigrant mothers with children DHS put on buses this summer, how much money it spent in dealing with the wave of illegal immigration by single mothers with children, and what percentage of those illegal immigrants reported to immigration authorities at their final destinations as they'd been ordered to do.

Reporter questions along these lines in press conferences haven't worked. As noted, my phone calls haven't worked.  And now my FOAI request hasn't worked.  Can you please advise what steps WILL work--and if none will, explain why this information is being kept secret?

If you cannot answer those questions in your capacity as an FOIA officer, I would appreciate you arranging for me to come into contact with someone in your agency who can.

In support of this request, I direct your attention to president Obama's memorandum on "Transparency and Open Government," now posted on whitehouse.gov, the first paragraph of which reads:

"My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government."

In good faith, I am seeking on behalf of PowerTalk 1210 and our Tucson radio listeners the transparency and collaboration the President promised.

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Related:   Radio Skit--The Department of Homeland Security Press Room

©2014 by Forrest Carr.  All rights reserved.