Of/ice 0/ Inspector General

.. . Homeland
Washington, DC 20528

Security
www.oig.dhs.gov
JUN 042012
Ms. Lisette Garcia
Judicial Watch, Inc.
425 Third Street SW, Suite 800
Washington, DC 20024
Subject: Freedom of Information Act Request No. 2012-125 - Fee Waiver Denial
Dear Ms. Garcia:
This acknowledges your Freedom of Information Act (FOIA) request to the Department
of Homeland Security (DHS) Office ofInspector General (OIG), dated May 30,2012,
and seeking communications respecting the legality of recovering improper payments of
any kind disbursed via FEMA's Emergency Food & Shelter Program (copy attached for
reference). Your request also seeks a fee waiver. Your letter was received in this office
on May 30, 2012, and was assigned the above-referenced tracking number.
Your request has been placed in the queue for processing in the order in which it was
received. Simple requests are answered more quickly and will be placed on the fast track
of our multi-track processing system. More complex requests, including those calling for
a particularly large volume of records, are segregated into a group designated as Project
Requests. These require significantly more processing time and are processed separately
in the order in which received. Due to the increasing number of FOIA requests received
by this office, we may encounter some delay in processing yOUl'request. Per Section
S.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, DHS-OIG processes FOIA requests
according to their order of receipt. Although DHS-OIG's goal is to respond within 20
business days ofreceipt of your request, the FOIA does permit a 10-day extension of this
time period under 5 U.S.C. 552(a)(6)(B). As your request seeks numerous documents
that will necessitate a thorough and wide-ranging search, DHS-OIG hereby invokes this
10-day extension for your request, and estimates a response to your request to be
provided within 30 business days. Please note, however, that the actual time required to
respond to your request depends on how many responsive records and the types of
records identified and located in our records search. If you care to narrow the scope of
your request, please contact our office. We will make every effOrt to comply with your
request in a timely manner.
The DHS FOIA Regulations, 6 CFR 5.11(k)(2), set forth six factors to examine in
determining whether the applicable legal standard for a fee waiver has been met. I
considered these factors in my evaluation of your request for a fee waiver:
1. Whether the subject of the requested records concerns "the operations or
activities of the government;"
2. Whether the disclosure is "likely to contribute" to an understanding of
government operations or activities;
3. Whether disclosure of the requested information will contribute to "public
understanding," as opposed to the individual understanding of the requestor;
4. Whether the disclosure is likely to contribute "significantly" to public
understanding of government operations or activities;
5. Whether the requester has a commercial interest that would be furthered by
the requested disclosure; and
6. Whether any identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that disclosure is
"primarily in the commercial interest of the requester."
As a requester, you bear the burden under the FOIA of showing that the fee waiver
requirements have been met. Based on my review of your May 30, 2012 letter, and for
the reasons stated herein, I have decided to deny your fee waiver request. In reaching my
conclusion I have analyzed the above factors as they apply to the circumstances of your
request. While the records you seek do concern the operations or activities of DHS and
you do not appear to have an overriding commercial interest in the records, other relevant
factors have not been met.
To qualify for a fee waiver, you must make an adequate showing that a release of the
information to you is likely to contribute significantly to the public at large's
understanding of government operations or activities. Your assertions on how production
ofthese records will contribute to the public's understanding of government operations or
activities are, however, conclusory. For example, you state generally that:
The particular records requested herein are sought as part of Judicial Watch's
ongoing efforts to document the operations and activities ofthe federal
government and to educate the public about these operations and activities. Once
Judicial Watch obtains the requested records, it intends to analyze them and
disseminate the results of its analysis, as well as the records themselves, as a
special written report.
Such general statements do not satisfy your burden under the FOIA of showing that fee
waiver requirements have been met, as they are too speculative for me to conclude that a
release to you would be of any interest to anyone but a narrow segment of interested
persons.
In addition, I am denying your request for status as a "representative of the news media."
DHS FOIA regulations specifically define "representative of the news media" as "any
person actively gathering news for an entity that is organized and operated to publish or
broadcast news to the public." See, 6 C.F.R. 5.1 1 (b)(6). Based on the information
contained in your letter, I am denying your request for media status because you have not
presented a convincing argument that Judicial Watch, Inc. is an entity organized and
operated to publish or broadcast news to the public.
At this point, without a fee waiver being granted, DHS regulations allow us to recover
part of the cost of complying with your request. We shall charge you for records in
accordance with the DHS Interim FOIA regulations as they apply to non-commercial or
other" requestors. As a non-commercial requestor you will be charged 1 O-cents a page
for duplication, although the first 100 pages are free, as are the first two hours of search
time, after which yQU will pay the per quarter-hour rate of pay ($4.00, $7.00, or $10.25)
for the searcher. You stated in your request that you are willing to pay assessable fees up
to $350.00. You w'W be contacted before any further fees are accrued.
You have the right to appeal the determination to deny your fee waiver request. Your
appeal must be in writing and received within 60 days of the date of this response. Please
address any appeal to:
FOIAIPA Appeals Unit
DHS/Inspector General
STOP 2600
245 Murray Drive, SW, Building 410
Washington, DC 20528
Both the envelope and letter of appeal must be clearly marked, "Freedom of Information
Act/Privacy Act Appeal. .... Your appeal letter must also clearly identify the OIG"s
response. Additional information on submitting an appeal is set forth in the DHS
regulations at 6 C.F.R. 5.9. If you have any questions about this response please contact
Kirsten Teal, FOIAIPA Disclosure Specialist, at 202-632-0346.
The Office of Government Information Services (OGIS) also mediates disputes between
FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you
are requesting access to your own records (which is considered a Privacy Act request),
you should know that OGIS does not have the authority to handle requests made under
the Privacy Act of 1974. If you wish to contact OGIS, you may email that entity at
ogis@nara.gov or call 877-684-6448.
Assistant Counsel to the Inspector General
Copy of the
FOIA Reguest
TRANSMISSION VERIFICATION REPORT I
TIME 85/38/2012 86:16
NAME JUDICIAL WATCH
FAX 2026460190
TEL 2026465172
SER.#: 08BG8N646578
DATEfTlt.E 05/30.00:14
FAX NO. /NAME 2022829196
DURATION 00:02:12
PAGE{S) 135
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425 Third St., SW, Ste. 800
Wasbington. DC 20024
Phone: 202-646-5172
Fax: 202-646-5199
Internet: www.Judieialwatch.org
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Judicial
Watcfi
Because no one
is above the law!
May 30, 2012
VIA CERTIFIED MAIL & FACSIMILE:
(703)235-0443; (202) 254-4398; (202) 646-3347; (202)282-9186;(202) 646-3055
FOIA Chief Anthony M. Bennett
Federal Emergency Mgmt Agency
Department of Homeland Security
Deputy FOIA ChiefDelores Barber 500 C Street, S.W., Rm. 840
Dept ofHomeland Security Washington, D.C. 20472
_Mail Stop-0655
245 Murray Dr., S.W., Bldg. 410 Acting FOIA ChiefFemando Pineiro
Washington, D.C. 20528-0655 Office of General Counsel
Department of Homeland Security
245 Murray Lane
FOIA Chief Katherine Gallo Mail Stop-3650
Office of the Inspector General Washington, D.C. 20528-0001
Dept of Homeland Security
Mail Stop-2600 FEMA FOIA Office
245 Murray Dr., S.W., Bldg. 410 Records ManagementlDisclosure Branch
Washington, D.C. 20528-0001 1800 S. Bell St., 4th Fl.
Mail Stop-3005
Arlington, VA 22202
Re: FOIA About Uncollected Emergency Food & ShelterPromm Overpavments
Dear Mmes. Barber & Gallo, Messrs. Bennett & Pineiro:
The Department of Homeland Security (DHS) yesterday published its "High
Dollar Overpayments Report for the Quarter Ending March 31, 2012.,,1 The report stated
that Federal Emergency Management Agency (FEMA) overpayments disbursed via its
Emergency Food & Shelter Program (EFSP) in the amount of $362,484.63 had been
outstanding for 137 days as of March 31,2012. The report further stated that no
collection action was underway with respect to the $362,484.63 improperly paid by EFSP
because FEMA was unclear as to the legality of recovering such funds.
Hence, pursuant to the Freedom oflnformation Act (FOIA), 5 U.S.C. 552,
Judicial Watch, Inc., (Judicial Watch) hereby requests that DHS, including its Office of
Secretary Janet Napolitano, Dep't of Homeland Sec., Memo for Council of Insp. Gen. for Integrity &
Efficiency, ."Quarterly High-Dollar Overpayments Report January to March 2012," May 15, 2012,
http://www.dhs.gov/xabout/budget/gc 1276110646530.shtm.
425 Third St, SW, Suite 800, Washington, DC 20024 . Tel: (202) 646-5l72 or 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org www.JudicialWatch.org
I
DHSIDHS-IGIDHS-OGC
FEMA-OCFOIFEMA-EFSP
May 30, 2012
Inspector General (DRS-OIG) and Office of General Counsel (DijS-OGC), as well as
FEMA, including its Chief Financial Officer (FEMA-OCFO) and EFSP, each produce
the following records within twenty (20) business days:
All communications respecting the legality of recovering improper
payments of any kind - including overpayments and wrongful
payments - disbursed via FEMA's Emergency Food & Shelter
Program.
The time frame for this request is November 1, 2011 through the present.
In placing this request, Judicial Watch directs your attention to President Barack
Obama's January 21,2009 Memorandum concerning the Freedom ofInformation Act
which states:
All agencies should adopt a presumption in favor of disclosure, in
order to renew their commitment to the principles embodied in
FOIA...The presumption of disclOSlire should be applied to all
decisions involving FOIA.
Freedom of Information Act. Pres. Mem. of January 21, 2009, 74 Fed. Reg. 4683.
The memo further provides that "The Freedom of Information Act should be
administered with a clear presumption: In the case of doubt, openness prevails."
Nevertheless, if any responsive record or portion thereof is claimed to be exempt
from production under FOIA, please provide sufficient identifying information with
respect to each allegedly exempt record or portion thereofto allow us to assess the
propriety of the claimed exemption. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). In addition, any reasonably segregable portion of a
responsive record must be provided, after redaction of any allegedly exempt material. 5
U.S.C. 552(b).
Judicial Watch also hereby requests a waiver of both search and duplication fees
pursuant to 5 U.S.C. 5S2(a)(4)(A)(ii)(II) and (a)(4)(A)(iii). Judicial Watch is entitled
to a waiver of search fees under 5 US.C. 552(a)( 4)(A)(ii)(II) because it is a member of
the news media. Cf National Security Archive v. Department o/Defense, 880 F.2d 1381,
1387 (D.C. Cir. 1989)(defining news media within FOIA context). Judicial Watch has
also been recognized as a member ofthe news media in other FOIA litigation. See, e.g.,
Judicial Watch, Inc. v. US. Department 0/Justice, 133 F. Supp.2d 52 (D.D.C. 2000);
and, Judicial Watch, Inc. v. Department ofDefense, 2006 U.S. Dist. LEXIS 44003, *1
(D.D.C. June 28, 2006). Judicial Watch regularly obtains information about the
operations and activities of government through FOIA and other means, uses its editorial
Page 2 of4
DHSIDHS-IGIDHS-OGC
FEMA-OCFOIFEMA-EFSP
May 30,2012
skills to turn this information into distinct works, and publishes and disseminates these
works to the public. It intends to do likewise with the records it receives in response to
this request.
Judicial Watch also is entitled to a complete waiver of both search fees and
duplication fees pursuant to 5 U.S.C. 552(a)(4)(A)(iii). Under this provision, records:
shall be furnished without any charge or at a charge reduced below
the fees established under clause (ii) if disclosure of the
information is in the public interest because it is likely to
contribute significantly to public understanding ofthe operations
or activities ofgovernment and is not primarily in the commercial
interest of the requester.
5 U.S.C. 552(a)(4)(A)(iii).
In addition, if records are not produced within twenty (20) business days, Judicial
Watch is entitled to a complete waiver of search and duplication fees under Section 6(b)
ofthe OPEN Government Act of 2007, which amended FOIA at 5 U.S.C. 552
(a)( 4)(A)(viii).
Judicial Watch is a 501(c)(3), not-for-profit, educational organization, and, by
definition, it has no commercial purpose. Judicial Watch exists to educate the public
about the operations and activities of government, as well as to increase public
understanding about the importance of ethics and the rule of law in government. The
particular records requested herein are sought as part ofJudicial Watch's ongoing efforts
to document the operations and activities of the federal government and to educate the
public about these operations and activities. Once Judicial Watch obtains the requested
records, it intends to analyze them and disseminate the results of its analysis, as well as
the records themselves, as a special written report. Judicial Watch will also educate the
public via radio programs, Judicial Watch's website, and/or newsletter, among other
outlets. It also will make the records available to other members of the media or
researchers upon request. Judicial Watch has a proven ability to disseminate information
obtained through FOIA to the public, as demonstrated by its long-standing and
continuing public outreach efforts.
Given these circumstances, Judicial Watch is entitled to a public interest fee
waiver of both search costs and duplication costs. Nonetheless, in the event our request
for a waiver of search and/or duplication costs is denied, Judicial Watch is willing to pay
up to $350.00 in search and/or duplication costs. Judicial Watch requests that it be
contacted before any such costs are incurred, in order to prioritize search and duplication
efforts.
Page 3 of4
DHSIDHS-IGIDHS-OGC
FEMA..OCFOIFEMA-EFSP
May 30,2012
In an effort to facilitate record production within the statutory time limit, Judicial
Watch is willing to accept documents in electronic format (e.g. When
necessat:Y, Judicial Watch will also accept the ''rolling production" of documents.
Judicial Watch anticipates promptreceipt ofthe requested documents and a waiver of
both search and duplication costs within twenty (20) business cU!.ys.Thank you for your
timely compliance with all applicable laws.
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