[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]




 
                     THE PUBLIC'S RIGHT TO KNOW:
             FOIA AT THE DEPARTMENT OF HOMELAND SECURITY

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                         OVERSIGHT, MANAGEMENT,
                           AND ACCOUNTABILITY

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 17, 2019

                               __________

                           Serial No. 116-43

                               __________

       Printed for the use of the Committee on Homeland Security
       
                                     

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                                     

        Available via the World Wide Web: http://www.govinfo.gov

                               __________
                               
                U.S. GOVERNMENT PUBLISHING OFFICE 
 40-459 PDF               WASHINGTON : 2020                                
                               
                               
                               
                               

                     COMMITTEE ON HOMELAND SECURITY

               Bennie G. Thompson, Mississippi, Chairman
Sheila Jackson Lee, Texas            Mike Rogers, Alabama
James R. Langevin, Rhode Island      Peter T. King, New York
Cedric L. Richmond, Louisiana        Michael T. McCaul, Texas
Donald M. Payne, Jr., New Jersey     John Katko, New York
Kathleen M. Rice, New York           Mark Walker, North Carolina
J. Luis Correa, California           Clay Higgins, Louisiana
Xochitl Torres Small, New Mexico     Debbie Lesko, Arizona
Max Rose, New York                   Mark Green, Tennessee
Lauren Underwood, Illinois           Van Taylor, Texas
Elissa Slotkin, Michigan             John Joyce, Pennsylvania
Emanuel Cleaver, Missouri            Dan Crenshaw, Texas
Al Green, Texas                      Michael Guest, Mississippi
Yvette D. Clarke, New York           Dan Bishop, North Carolina
Dina Titus, Nevada
Bonnie Watson Coleman, New Jersey
Nanette Diaz Barragan, California
Val Butler Demings, Florida
                       Hope Goins, Staff Director
                 Chris Vieson, Minority Staff Director
                                 ------                                

       SUBCOMMITTEE ON OVERSIGHT, MANAGEMENT, AND ACCOUNTABILITY

              Xochitl Torres Small, New Mexico, Chairwoman
Dina Titus, Nevada                   Dan Crenshaw, Texas, Ranking 
Bonnie Watson Coleman, New Jersey        Member
Nanette Diaz Barragan, California    Clay Higgins, Louisiana
Bennie G. Thompson, Mississippi (ex  Van Taylor, Texas
    officio)                         Mike Rogers, Alabama (ex officio)
                Lisa Canini, Subcommittee Staff Director
            Katy Flynn, Minority Subcommittee Staff Director
            
                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Xochitl Torres Small, a Representative in Congress 
  From the State of New Mexico, and Chairwoman, Subcommittee on 
  Oversight, Management, and Accountability:
  Oral Statement.................................................     1
  Prepared Statement.............................................     2
The Honorable Dan Crenshaw, a Representative in Congress From the 
  State of Texas, and Ranking Member, Subcommittee on Oversight, 
  Management, and Accountability:
  Oral Statement.................................................     3
  Prepared Statement.............................................     4
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Chairman, Committee on 
  Homeland Security:
  Prepared Statement.............................................     5

                               Witnesses

Mr. James V.M.L. Holzer, PhD, Deputy Chief FOIA Officer, Privacy 
  Office, U.S. Department of Homeland Security:
  Oral Statement.................................................     6
  Prepared Statement.............................................     8
Ms. Tammy Meckley, Associate Director, Immigration Records and 
  Identity Services Directorate, U.S. Citizenship and Immigration 
  Services, U.S. Department of Homeland Security:
  Oral Statement.................................................    11
  Prepared Statement.............................................    13
Ms. Alina M. Semo, Director, Office of Government Information 
  Services, National Archives and Records Administration:
  Oral Statement.................................................    15
  Prepared Statement.............................................    16
Mr. Vijay A. D'Souza, Director, Information Technology and 
  Cybersecurity, U.S. Government Accountability Office:
  Oral Statement.................................................    20
  Prepared Statement.............................................    21

                             For the Record

The Honorable Xochitl Torres Small, a Representative in Congress 
  From the State of New Mexico, and Chairwoman, Subcommittee on 
  Oversight, Management, and Accountability:
  Statement of Margaret B. Kwoka, Professor of Law, University of 
    Denver.......................................................    39
  Joint Statement of American Oversight, Demand Progress, 
    Electronic Frontier Foundation, Government Accountability 
    Project, National Freedom of Information Coalition, National 
    Security Archive, Open the Government, Project On Government 
    Oversight....................................................    51

                               Appendix I

Letter From the Electronic Privacy Information Center............    55

                              Appendix II

Questions From Chairman Xochitl Torre Small for James V.M.L. 
  Holzer.........................................................    61
Question From Chairman Xochitl Torres Small for Tammy Meckley....    61
Questions From Chairman Xochitl Torre Small for Alina M. Semo....    61





THE PUBLIC'S RIGHT TO KNOW: FOIA AT THE DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                       Thursday, October 17, 2019

             U.S. House of Representatives,
                    Committee on Homeland Security,
                    Subcommittee on Oversight, Management, 
                                        and Accountability,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:09 p.m., in 
room 310, Cannon House Office Building, Hon. Xochitl Torres 
Small [Chairwoman of the subcommittee] presiding.
    Present: Representatives Torres Small, Titus, Barragan; 
Crenshaw, Higgins, and Taylor.
    Ms. Torres Small. The Subcommittee on Oversight, 
Management, and Accountability will come to order.
    Good afternoon. The subcommittee is meeting today to 
examine the manner in which the Freedom of Information Act, 
known as FOIA, is being implemented at the Department of 
Homeland Security.
    FOIA, which was enacted more than 50 years ago, represents 
a critical aspect of democracy that any citizen, regardless of 
color, age, race, or creed, can request and receive Government 
records for any reason. This commitment to transparency and 
openness gets to the core of our American ideals: An informed 
electorate is essential to a healthy, functioning democracy.
    An effective FOIA process is particularly important at the 
Department of Homeland Security, which receives nearly half of 
all requests for information across the entire Federal 
Government.
    Some of the numbers at DHS are astounding. Nearly 400,000 
FOIA requests were received in fiscal year 2018, a three-fold 
increase since 2010. Thirty-five million pages of information 
were released to the public last year, nearly 60,000 pages per 
full-time FOIA employee. This is an extremely demanding job 
that deserves to be recognized. That said, we know that there 
are more efficiencies to be gained in the FOIA process, and we 
want to work with the Department leadership to find those 
efficiencies in an effort to better serve the American public.
    Nearly 90 percent of all FOIA requests at DHS come from 
individuals or their attorneys who are seeking access to 
information contained in their immigration files. These first-
person requests are diverting attention away from more complex 
record requests, including requests for contracts, 
communications, and other documents related to the development 
of certain departmental policies.
    U.S. Citizenship and Immigration Services, USCIS, continues 
to process about half of all FOIA requests the Department 
receives, about a quarter of the Government-wide total.
    Ms. Meckley, I look forward to hearing about the new 
digital processing system your agency recently stood up. I 
understand this new system, called FIRST, has shown promise in 
reducing processing times and cutting into USCIS's FOIA 
backlog. I applaud these efforts, and would like to learn more 
about what is being done to make similar improvements across 
the DHS enterprise.
    It is concerning to me, though, that DHS components use 
different FOIA processing systems, systems that don't always 
talk to each other.
    I am also concerned that the 3 DHS components that field 
the most FOIA requests--Customs and Border Protection, CBP; 
Immigration and Customs Enforcement, ICE; and USCIS--aren't 
always working together in the most efficient and effective 
manner.
    Despite a 2014 GAO recommendation that USCIS and ICE 
establish a service-level agreement to eliminate duplication, 
no such agreement exists today. Duplication and other 
inefficiencies in the FOIA process, unfortunately, have real-
world consequences. Attorneys must request continuances in 
their clients' immigration court proceedings while they wait 
for basic records to be produced. This contributes to the 
extensive backlog we have seen in recent years at the 
Department of Justice.
    In other cases, the public remains in the dark about how 
taxpayer money is being spent, or how DHS policies are being 
crafted. In my district, for example, the city of Sunland Park 
is awaiting a response to a FOIA request submitted to FEMA in 
order to revise flood zoning mapping that is negatively 
affecting my residents. Slow processing times and extensive 
backlogs not only strain Government resources, but also cloud 
public understanding of pressing items of interest.
    The FOIA office at DHS headquarters has an important role 
to play in brokering agreements between component FOIA offices 
and driving institutional change through Department-wide 
guidance and instruction.
    Dr. Holzer, I hope to hear from you this afternoon on what 
more could be done to improve coordination and cohesion 
throughout the Department from a FOIA standpoint.
    I believe I speak for all Members of this subcommittee when 
I say that we stand willing to assist in making DHS a more 
open, transparent, and responsive Federal agency. Thank you in 
advance to all of our witnesses, and I look forward to hearing 
your testimony today.
    [The statement of Chairwoman Torres Small follows:]
              Statement of Chairwoman Xochitl Torres Small
                            October 17, 2019
    The subcommittee is meeting today to examine the manner in which 
the Freedom of Information Act, known as FOIA, is being implemented at 
the Department of Homeland Security. FOIA, which was enacted more than 
50 years ago, represents a critical aspect of democracy: That any 
citizen--regardless of age, race, color, or creed--can request and 
receive Government records for any reason. This commitment to 
transparency and openness gets to the core of our American ideals. An 
informed electorate is essential to a healthy, functioning democracy. 
An effective FOIA process is particularly important at the Department 
of Homeland Security, which receives nearly half of all requests for 
information across the entire Federal Government.
    Some of the numbers at DHS are astounding. Nearly 400,000 FOIA 
requests were received in fiscal year 2018, a three-fold increase since 
2010. Thirty-five million pages of information were released to the 
public last year--nearly 60,000 pages per full-time FOIA employee. This 
is an extremely demanding job that deserves to be recognized. That 
said, we know that there are more efficiencies to be gained in the FOIA 
process, and we want to work with Department leadership to find those 
efficiencies in an effort to better serve the American public. Nearly 
90 percent of all FOIA requests at DHS come from individuals or their 
attorneys who are seeking access to information contained in their 
immigration files. These ``first-person'' requests are diverting 
attention away from more complex records requests, including requests 
for contracts, communications, and other documents related to the 
development of certain departmental policies. U.S. Citizenship and 
Immigration Services (USCIS) continues to process about half of all 
FOIA requests the Department receives--and about a quarter of the 
Government-wide total.
    Ms. Meckley, I look forward to hearing about the new digital 
processing system your agency recently stood up. I understand this new 
system, called FIRST, has shown promise in reducing processing times 
and cutting into USCIS's FOIA backlog. I applaud these efforts and 
would like to learn more about what is being done to make similar 
improvements across the DHS enterprise. It's concerning to me though 
that DHS components use different FOIA processing systems--systems that 
don't always talk to each other. I'm also concerned that the 3 DHS 
components that field the most FOIA requests--Customs and Border 
Protection (CBP), Immigration and Customs Enforcement (ICE), and 
USCIS--aren't always working together in the most efficient and 
effective manner. Despite a 2014 GAO recommendation that USCIS and ICE 
establish a service-level agreement to eliminate duplication, no such 
agreement exists today. Duplication and other inefficiencies in the 
FOIA process, unfortunately, have real-world consequences. Attorneys 
must request continuances in their clients' immigration court 
proceedings while they wait for basic records to be produced. This 
contributes to the extensive backlog we've seen in recent years at the 
Department of Justice.
    In other cases, the public remains in the dark about how taxpayer 
money is being spent or how DHS policies are being crafted. In my 
district, for example, the city of Sunland Park is awaiting a response 
to a FOIA request submitted to FEMA in order to revise flood zone 
mapping that is negatively affecting many residents. Slow processing 
times and extensive backlogs not only strain Government resources but 
also cloud public understanding of pressing items of interest. The FOIA 
Office at DHS Headquarters has an important role to play in brokering 
agreements between component FOIA offices and driving institutional 
change through Department-wide guidance and instruction. Dr. Holzer, I 
hope to hear from you this afternoon on what more could be done to 
improve coordination and cohesion throughout the Department from a FOIA 
standpoint. I believe I speak for all Members of this subcommittee when 
I say that we stand willing to assist in making DHS a more open, 
transparent, and responsive Federal agency.

    Ms. Torres Small. The Chair now recognizes the Ranking 
Member of the subcommittee, the gentleman from Texas, Mr. 
Crenshaw, for an opening statement.
    Mr. Crenshaw. Thank you, Chairwoman Torres Small, and thank 
you to our witnesses for being here. I am pleased that we are 
holding this hearing today to examine how the Department of 
Homeland Security complies with the Freedom of Information Act.
    The Freedom of Information Act, FOIA, was enacted in 1966 
as a tool to provide transparency and accountability into 
Federal Government operations. The Act has helped to uncover 
instances of waste, fraud, and abuse, as well as misconduct in 
Federal Government agencies. It was a FOIA request that 
uncovered wasteful Government spending in the aftermath of 
Hurricane Katrina. It was a FOIA request that exposed over $200 
million in wasteful spending at the Department of Defense 
through a program that allowed vendors to set their own prices, 
including $1,000 for toasters. In 1978 FOIA was used to expose 
information about the exploding gas tanks on the Ford Pinto, 
and the car was then recalled.
    Since its enactment, FOIA has been used by U.S. citizens, 
organizations, and journalists to request information about how 
our Government is operating, and hold the Executive branch 
accountable to the people it serves. Each year, watchdog groups 
and reporters do an annual assessment of FOIA and the 
responsiveness of the administration to FOIA requests.
    In 2016 it was reported that the Obama administration 
received 769,000 requests, and set a record by censoring 
Government files or denying access to records 77 percent of the 
time. In 2018 it was reported that the Trump administration did 
so 78 percent of the time, with 823,000 requests for 
information. These statistics are troubling for both 
administrations. We must look at ways to improve the 
responsiveness to FOIA for our citizens.
    DHS, as one of the largest agencies in the Federal 
Government, is no stranger to FOIA requests. In fact, DHS 
receives more FOIA requests than any other Federal Government 
agency. In 2018 DHS received 395,000 requests for information. 
The next closest agency was the Department of Justice, with 
almost 100,000 requests. In August 2019 alone, DHS received 
39,000 FOIA requests. USCIS is the largest recipient of 
requests in DHS, with almost 200,000 requests received in 2018.
    The Privacy Office of DHS has implemented a FOIA processing 
and tracking system, providing support to the components in 
processing backlogs, and issued policy guidance and training 
related to FOIA.
    USCIS has developed and implemented its own electronic FOIA 
request system called Freedom of Information Act Records 
System, or FIRST. USCIS deployed FIRST in May 2018 to allow 
individuals to create an on-line account to electronically 
submit and track FOIA requests and receive documents to satisfy 
those requests. DHS has made improvements, but large backlogs 
in processing remain.
    I encourage DHS and USCIS to continue their efforts to 
improve responsiveness to FOIA requests. I know DHS has sought 
the advice and assistance of other--of our other 2 witnesses on 
improving the FOIA process, and I look forward to hearing their 
assessment of how DHS handles FOIA requests, and how it can 
improve operations to ensure accountability for U.S. citizens.
    I yield back.
    [The statement of Ranking Member Crenshaw follows:]
                Statement of Ranking Member Dan Crenshaw
                            October 17, 2019
    I am pleased we are holding this hearing today to examine how the 
Department of Homeland Security complies with the Freedom of 
Information Act.
    The Freedom of Information Act, FOIA, was enacted in 1966 as a tool 
to provide transparency and accountability into Federal Government 
operations. The Act has helped to uncover instances of waste, fraud, 
and abuse as well as misconduct in Federal Government agencies.
    It was a FOIA request that uncovered wasteful Government spending 
in the aftermath of Hurricane Katrina. It was a FOIA request that 
exposed over $200 million in wasteful spending at the Department of 
Defense through a program that allowed vendors to set their own prices, 
including $1,000 for toasters. In 1978, FOIA was used to expose 
information about the exploding gas tanks on the Ford Pinto and the car 
was then recalled.
    Since its enactment, FOIA has been used by U.S. citizens, 
organizations, and journalists to request information about how our 
Government is operating and hold the Executive branch accountable to 
the people it serves.
    Each year, watchdog groups and reporters do an annual assessment of 
FOIA and the responsiveness of the administration to FOIA requests. In 
2016, it was reported that the Obama administration received 769,903 
requests and set a record by censoring Government files or denying 
access to records 77 percent of the time. In 2018, it was reported that 
the Trump administration did so 78 percent of the time with 823,222 
requests for information. These statistics are troubling for both 
administrations. We must look at ways to improve the responsiveness to 
FOIA for our citizens.
    DHS, as one of the largest agencies in the Federal Government, is 
no stranger to FOIA requests. In fact, DHS receives more FOIA requests 
than any other Federal Government agency. In 2018, DHS received 395,751 
requests for information. The next closest agency was the Department of 
Justice with 96,875 requests. In August 2019 alone, DHS received 39,141 
FOIA requests. USCIS is the largest recipient of requests in DHS with 
191,804 requests received in fiscal year 2018.
    The Privacy Office at DHS has implemented a FOIA processing and 
tracking system, provided support to the components in processing 
backlogs, and issued policy guidance and training related to FOIA. 
USCIS has developed and implemented its own electronic FOIA request 
system called Freedom of Information Act Records System (FIRST). USCIS 
deployed FIRST in May 2018 to allow individuals to create an on-line 
account to electronically submit and track FOIA requests and receive 
documents to satisfy those requests.
    DHS has made improvements, but large backlogs in processing remain. 
I encourage DHS and USCIS to continue their efforts to improve 
responsiveness to FOIA requests. I know DHS has sought the advice and 
assistance of our other 2 witnesses on improving the FOIA process. I 
look forward to hearing their assessment of how DHS handles FOIA 
requests and how it can improve operations to ensure accountability for 
U.S. citizens.

    Ms. Torres Small. Other Members of the committee are 
reminded that, under the committee rules, opening statements 
may be submitted for the record.
    [The statement of Chairman Thompson follows:]
                Statement of Chairman Bennie G. Thompson
                            October 17, 2019
    Congress passed the Freedom of Information Act (FOIA) more than 5 
decades ago--recognizing that a government that is truly accountable to 
its citizens must operate in the open. Prior to FOIA, individuals had 
to establish a ``need to know'' in order to access Federal records. 
Today, they have the ``right to know.'' The burden of proof has shifted 
to the Government, which must provide a compelling reason before 
denying a citizen's request for public information.
    I am concerned that, all too often, public requests for information 
are being denied by the Department of Homeland Security--and that 
FOIA's statutory exemptions are being inconsistently applied. DHS, 
which receives the vast majority of FOIA requests across the entire 
Federal Government, only fully granted about 7 percent of requests in 
fiscal year 2018. This was far less than the Government-wide average of 
27 percent. Put another way, the Department partially or fully denied 
93 percent of requests it received in 2018. I want to know why the 
Department's response rate is much lower than the average. I also want 
some assurances that information the public is entitled to under the 
law is not being unduly withheld from the American people. Finally, I 
want to touch on a disturbing phenomenon we have seen recently at other 
Federal agencies.
    Earlier this year, the Interior Department formally instituted a 
policy allowing political appointees to review FOIA responses in which 
they, themselves, are named. Similar changes were made at the 
Environmental Protection Agency (EPA) in June, giving the EPA 
administrator and deputy administrator the authority to decide whether 
or not to release public documents. I want confirmation today that DHS 
is not following the lead of these agencies and allowing political 
appointees to undermine the FOIA process.
    I also hope to hear about why the Department lacks a centralized 
system for handling FOIA requests as well as what more can be done at 
Headquarters to ensure all components' FOIA offices follow Department-
wide guidance.

    Ms. Torres Small. I now welcome our panel of witnesses, and 
thank them for joining us today.
    Our first witness is Dr. James Holzer, who has served as 
the deputy chief FOIA officer at the Department of Homeland 
Security since 2016. In this role Dr. Holzer is responsible for 
overseeing and leading FOIA operations across the DHS 
enterprise. Dr. Holzer previously served as director for the 
Office of Governmental Information Services, and chairman of 
the Federal FOIA Advisory Committee. He is an Air Force veteran 
who began his career at the Department of Homeland Security as 
a FOIA processor in 2009.
    Our second witness is Ms. Tammy Meckley. She leads the 
immigration records and identity services directorate at U.S. 
Citizenship and Immigration Services. Her responsibilities 
include overseeing USCIS FOIA operations at the National 
Records Center, a 300,000-square-foot facility in suburban 
Kansas City that stores, manages, and retrieves information 
contained in more than 20 million immigration files.
    Our third witness is Ms. Alina Semo, the director of the 
Office of Government Information Services at the National 
Archives and Records Administration. OGIS provides policy 
guidance and mediation services for FOIA activities across the 
Federal Government. Prior to her work as OGIS director, Ms. 
Semo served in the Office of General Counsel at the National 
Archives, and led the FOIA litigation unit at the FBI.
    Our final witness today is Mr. Vijay D'Souza, a director in 
the information technology and cybersecurity team at the 
Government Accountability Office. Mr. D'Souza has nearly 2 
decades of experience at GAO, and has led multiple efforts to 
build GAO's analytical capabilities, and assess the performance 
of Federal programs in the cybersecurity and information 
technology space.
    Without objection, the witnesses' full statements will be 
inserted in the record.
    I now ask each witness to summarize his or her statement 
for 5 minutes, beginning with Dr. Holzer.

   STATEMENT OF JAMES V.M.L. HOLZER, PH D, DEPUTY CHIEF FOIA 
 OFFICER, PRIVACY OFFICE, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Holzer. Chairwoman Torres Small, Ranking Member 
Crenshaw, and distinguished Members of the subcommittee, thank 
you for the opportunity to appear before you today to discuss 
the Freedom of Information Act program at DHS.
    The Department's FOIA program's mission is to promote 
transparency by providing records, while also protecting 
interests identified by 1 of the law's 9 exemptions. 
Disclosures under FOIA provide the public with a better 
understanding of and more confidence in the Department's work, 
and fosters greater public participation in decision making.
    The chief privacy officer has been designated the 
responsibility for oversight of the Department's decentralized 
FOIA operations. As the deputy chief FOIA officer, it is my 
responsibility to monitor implementation of the FOIA process 
across the Department, and to advise DHS leadership on 
performance and compliance.
    Under my leadership the DHS Privacy Office has issued 
policies that improve FOIA operations, establish FOIA 
performance metrics, invested in FOIA technology, and assisted 
in component backlog reduction efforts. The DHS Privacy Office 
is strengthening the regulatory and FOIA policy framework 
undergirding the FOIA program's operations.
    DHS issued updated FOIA regulations in 2016, and issued a 
directive clarifying the roles and the responsibilities of key 
personnel and directing components to comply with the FOIA and 
DHS policy. The DHS Privacy Office has issued two additional 
compliance instructions regarding FOIA reporting requirements 
and employee notification.
    The DHS privacy office is also improving performance 
through the establishment of DHS FOIA compliance and oversight 
program, which developed the Department's FOIA performance 
metrics. These metrics set clear goals for the number of 
requests components are expected to process, and the number of 
pages they are expected to release. It also encourages 
components to focus efforts on closing out any request that has 
been open for more than 200 days.
    In fiscal year 2018 DHS received and processed 45 percent 
of all the FOIA requests, Government-wide. The number of 
requests received by DHS in fiscal year 2019 increased slightly 
to more than 400,000 requests. This year our dedicated staff of 
about 600 full-time FOIA employees across the Department 
processed an estimated 430,000 FOIA requests, and released more 
than 40 million pages.
    The number of requests processed by DHS increased by 
approximately 14 percent. This is the fourth consecutive year 
with increases in--both in the number of requests received and 
the number processed by the Department. The Department ended 
fiscal year 2019 with a backlog of about 32,500 requests, a 
decrease of 40 percent compared to the previous fiscal year.
    Notably, DHS has made great strides in driving down the 
average response times to requests. At the end of the fiscal 
year preliminary numbers indicate that about 70 percent of open 
DHS FOIA requests were less than 60 days old. We expect the 
FOIA performance metrics to further assist us in improving our 
responsiveness to requesters.
    Our experience over the past 5 years has shown the value of 
investing in technology. Currently, all the HQ offices and 6 of 
the 9 operational components participate on the Department-wide 
FOIA tracking and processing solution that enables components 
to share the costs of storage and information technology 
support, avoid duplicative data entry, seamlessly transfer 
requests and records across the Department, and better manage 
the work force.
    DHS continues to modernize the FOIA IT infrastructure. In 
2018 the Department's FOIA Technology Working Group recommended 
scalable requirements for an enterprise FOIA processing and 
case management system. The solution must, No. 1, allow 
requesters to submit requests directly into the system and 
retrieve records electronically. No. 2, it must integrate 
advanced e-discovery tools, which will enable the de-
duplication of records and harness the power of artificial 
intelligence. No. 3, it must be interoperable with other FOIA 
processing solutions in the Department.
    In conclusion, DHS is committed to constantly improving 
public understanding of its mission, creating more confidence 
in the Department's work through disclosures under FOIA, and 
fostering greater public participation in agency decision 
making. The 40 million pages the DHS FOIA program released this 
year significantly advanced these goals.
    The DHS Privacy Office will continue to invest in our work 
force and create a sound regulatory framework that ensures the 
reliability and consistency of FOIA processing across the 
Department, and I will continue to seek new solutions for 
coordinating our efforts and better managing the backlog.
    Thank you for holding this important hearing today, and I 
look forward to answering your questions.
    [The prepared statement of Mr. Holzer follows:]
               Prepared Statement of James V.M.L. Holzer
                            October 17, 2019
    Chairwoman Torres Small, Ranking Member Crenshaw, and distinguished 
Members of the subcommittee, thank you for the opportunity to appear 
before you today to discuss oversight of the Freedom of Information Act 
(FOIA) process within the U.S. Department of Homeland Security (DHS).
                            dhs foia program
    DHS has a broad mandate to secure the Nation from threats. The DHS 
mission is to safeguard the American people, our homeland, and our 
values with honor and integrity. The Department's FOIA program 
accomplishes this mission by providing records that promote 
transparency and demonstrate accountability, while also protecting 
interests identified by one of the law's 9 exemptions. Disclosures 
under FOIA provide the public with a better understanding of, and more 
confidence in, the Department's work and fosters greater public 
participation in agency decision making. The Department is proud of the 
investments we have made in our FOIA program and workforce. In fiscal 
year 2019, our dedicated staff of about 600 full-time FOIA 
professionals--across all elements of the Department--processed an 
estimated 430,000 requests and released about 40 million pages of 
records. Our work not only improves the public's understanding of DHS 
operations, but also provides a critical service to people seeking 
their own records.
                           dhs privacy office
    Under the leadership of the chief privacy officer, who the 
Secretary also designated the DHS chief FOIA officer, the DHS Privacy 
Office is responsible for oversight of the Department's decentralized 
FOIA operations. DHS components are responsible for establishing and 
maintaining their own FOIA programs. As the deputy chief FOIA officer, 
it is my duty to monitor implementation of the law across the 
Department, and to counsel DHS leadership on adjustments to agency 
practices, policies, personnel, and funding as may be necessary to 
improve performance. Under my leadership, the DHS Privacy Office has 
met this mandate through, among other initiatives:
   Issuing policies that improve the reliability and 
        consistency of FOIA operations across the Department;
   Leveraging the Department of Justice (DOJ) Office of 
        Information Policy's (OIP) ``Self-Assessment Toolkit,'' which 
        contains various milestones to help agencies evaluate their 
        FOIA program and identify areas for improvement;
   Providing targeted training opportunities for Department 
        FOIA professionals;
   Establishing robust component FOIA performance metrics that 
        improve responsiveness to requesters;
   Investing in technology that improves workflows and 
        workforce management;
   Centralizing certain FOIA operations at the headquarters 
        level to take advantage of shared resources and create a 
        better-defined career path for DHS FOIA professionals;
   Using staff capabilities and expertise to assist in 
        aggressive component backlog reduction efforts; and
   Creating contract vehicles that enable components to easily 
        access support for surge efforts.
                           dhs foia requests
    In fiscal year 2018, DHS received and processed 45 percent of all 
the FOIA requests Government-wide, and we have every reason to expect 
that DHS will once again have the largest FOIA workload across the 
Government in fiscal year 2019. The number of requests received by DHS 
in fiscal year 2019 increased by approximately 2 percent compared to 
fiscal year 2018. The number of requests processed by DHS in fiscal 
year 2019 also increased by roughly 14 percent compared to fiscal year 
2018. This is the fourth consecutive year with increases in both the 
number of requests received and the number processed by the Department.
    In addition to receiving and processing more FOIA requests each 
year, the DHS FOIA program is locating, reviewing, and releasing more 
pages each year. For example, the average size of an Alien file (A-
file) documenting an immigrant's interactions with the Federal 
Government, which is the most commonly requested type of record from 
DHS, is growing. Additionally, DHS employees create a significant 
number of electronic records regarding the Department's activities, and 
the volume is increasing. Electronic search tools have improved the 
FOIA program's ability to locate records that may be responsive to a 
FOIA request, and the number of pages released has increased. Before 
these pages can be released, a DHS FOIA professional must conduct a 
thorough line-by-line review of the record to ensure that the public is 
provided with a maximum level of transparency, while also ensuring no 
information is released that could be used to attack our Nation's 
security or put other important interests, including personal privacy, 
at risk. Between fiscal year 2017 and fiscal year 2019, the average 
number of pages released in response to a request grew from 87 to 
almost 95--an increase of 9 percent.
                          regulatory framework
    As previously noted, the DHS Privacy Office is strengthening the 
regulatory and FOIA policy framework undergirding the FOIA program's 
operations. In compliance with the mandate in the FOIA Improvement Act 
of 2016, DHS issued updated FOIA regulations that incorporate the law's 
amendments and provide the public with insight into FOIA operations at 
the agency. The DHS Privacy Office also issued DHS Directive 262-11, 
Freedom of Information Act Compliance, which describes the 
responsibilities of the DHS chief FOIA officer, the deputy chief FOIA 
officer, component FOIA officers, and other key personnel and directs 
components to comply with FOIA law and DHS policy.\1\ The DHS privacy 
office has issued 2 additional compliance instructions:
---------------------------------------------------------------------------
    \1\ See: https://www.dhs.gov/publication/freedom-information-act-
compliance-directive-04601.
---------------------------------------------------------------------------
   DHS FOIA Compliance Instruction 262-11-001: Employee 
        Notification Instruction, which ensures current DHS employees 
        are notified if the FOIA office releases their employment 
        records;\2\ and
---------------------------------------------------------------------------
    \2\ See: https://www.dhs.gov/publication/foia-compliance-
instruction-262-11-001-employee-notification-instruction.
---------------------------------------------------------------------------
   DHS FOIA Compliance Instruction 262-11-002: FOIA Reporting 
        Requirements, which requires components to regularly report to 
        the DHS Privacy Office statistical information regarding their 
        FOIA operations and information regarding significant 
        requests.\3\
---------------------------------------------------------------------------
    \3\ See: https://www.dhs.gov/publication/foia-compliance-
instruction-262-11-002-foia-reporting-requirements.
---------------------------------------------------------------------------
                              performance
    The DHS Privacy Office also established a DHS FOIA Compliance and 
Oversight Program, which leverages the DOJ OIP's ``Self-Assessment 
Toolkit'' to identify shared challenges across the Department and best 
practices to improve the Department's FOIA performance. The results of 
the initial assessment assisted the DHS Privacy Office in identifying 
the need for additional training and led to the creation of robust 
component FOIA performance metrics. These performance metrics set clear 
goals for the number of requests components are expected to process and 
the number of pages they are expected to release. It also encourages 
components to focus efforts on closing out any request that has been 
open for more than 200 days.
                                backlog
    The Department ended fiscal year 2019 with a backlog of about 
32,500 requests to which no response had been issued within the law's 
20- or 30-day response time, a decrease of 40 percent compared to 
fiscal year 2018. The number of requests received and DHS's backlog do 
not include the almost 60,000 referrals from U.S. Citizenship and 
Immigration Services to U.S. Immigration and Customs Enforcement (ICE) 
that ICE was not able to log into their FOIA tracking solution before 
the end of the fiscal year. Since fiscal year 2018, the Department's 
FOIA backlog has ranged from fewer than 12,000 in 2010 to as many as 
approximately 103,000 in fiscal year 2014. Notably, DHS has made great 
strides in driving down the average response times to requests.
    At the end of fiscal year 2019, preliminary numbers indicate that 
about 70 percent of open DHS FOIA requests were less than 60 days old. 
DHS has also made significant progress in driving down the response 
time for relatively routine requests. In fiscal year 2018, DHS 
responses to routine requests averaged less than 30 days, a reduction 
of more than 10 days compared to fiscal year 2017 figures. DHS has also 
driven down the response time to complex requests involving voluminous 
amounts of records or particularly sensitive information. For instance, 
in fiscal year 2018, DHS responded to complex requests, on average, in 
less than 100 days, more than 20 days quicker compared to fiscal year 
2017. We expect the component FOIA performance metrics to further 
assist us in improving our responsiveness to requesters.
                               technology
    Our experience over the past 5 years has shown the value of 
investing in technology that eases the FOIA workload and enables 
process improvements. Efforts to digitize the FOIA process, eliminate 
paper-based processes, and avoid duplicating efforts have been key to 
the Department's ability to increase the number of requests processed 
and pages released. Currently, 10 of 13 components participate in a 
contracted FOIA tracking and processing solution that enables 
components to share the costs of storage and Information Technology 
(IT) support, avoid duplicative data entry, seamlessly transfer 
requests across components, and better manage the workforce.
    Senior Department leadership pushed forward an initiative to 
address outdated IT systems in the components by approving a list of 
priority areas for budget and resource planning. In July 2018, the FOIA 
Technology System Requirements Working Group, under the leadership of 
the DHS Privacy Office, drafted a Capabilities Analysis Report that 
recommended scalable requirements for an enterprise-wide FOIA 
processing and case management system. In a recent report on best 
practices for leveraging technology to improve FOIA processes, the 
National Archives and Records Administration's Office of Government 
Information Services cited the work of the DHS FOIA Technology System 
Requirements Working Group in writing requirements for a Department-
wide FOIA processing and case management system as a best practice.
    The Capabilities Analysis Report includes several key requirements 
that will assist the Department in better serving requesters, 
strengthening public trust in the Department's actions, and fostering 
greater public participation in agency decision making. One of the key 
requirements for this system is a FOIA requester interface, which 
allows requesters to submit requests directly into the system and 
retrieve records electronically. That feature alone will significantly 
reduce the administrative burden associated with FOIA. Including this 
feature in the Department's enterprise-wide FOIA processing solution 
will enable DHS FOIA professionals to spend less time on administrative 
tasks like data entry and devote more of their attention to complex 
processing issues. These features will also eliminate the need to 
create CDs to transmit electronic records to requesters.
    Another key requirement is integrating advanced e-discovery tools 
in the DHS enterprise-wide FOIA processing solution, which will enable 
the de-duplication of records and harness the power of artificial 
intelligence to detect information that should not be released. Having 
a tool that highlights sensitive information for DHS FOIA officers will 
increase the speed and accuracy of processing, enable the Department to 
release more records that shed a light on our operations, and better 
protect the critical interests protected by FOIA, including personal 
privacy. DHS highlighted the successful use of e-discovery tools to 
improve the FOIA process in its 2019 Chief FOIA Officer Report, which 
cites the successful use of e-discovery tools by the DHS Privacy Office 
and several DHS components to cull and de-duplicate records, thread e-
mails, and narrow large record sets based on key terms. Currently, the 
DHS Privacy Office and components use a variety of methods to access 
these tools, including purchasing costly licenses and paying for usage 
by other agencies and offices that have these tools. Incorporating e-
discovery tools into the enterprise-wide FOIA processing solution 
ensures all components that participate in the system have access to 
these tools when they need it and allows the Department to leverage the 
tools to assist with other information management needs across the 
Department.
                            interoperability
    The final key requirement is interoperability with other FOIA 
processing solutions currently in use at the Department. This 
interoperability will allow the Department to eliminate the duplication 
of efforts involved with referrals and consultations across the 
Department--allowing DHS FOIA professionals to focus their efforts on 
processing requests. The increase in the Department's backlog at the 
end of fiscal year 2019 highlights the critical importance of 
interoperable FOIA processing solutions across the Department. The DHS 
Privacy Office's ability to coordinate component-led surge efforts and 
mitigate the effects of these efforts on other components benefits the 
Department overall.
                               conclusion
    DHS is committed to constantly improving public understanding of 
its mission, creating more confidence in the Department's work through 
disclosures under the FOIA, and fostering greater public participation 
in agency decision making. The 40 million pages the DHS FOIA program 
released in fiscal year 2019 significantly advance these goals. These 
disclosures also feed into a continued public demand for information. 
DHS received a record-breaking number of requests in fiscal year 2019, 
and we expect the number of requests we receive in fiscal year 2020 to 
increase yet again. We also expect the concurrent number of potentially 
sensitive electronic records that must be reviewed for release in 
response to requests to continue to grow.
    I look forward to working with Members of this subcommittee to 
ensure that we are appropriately leveraging our resources and 
technology to make the FOIA process as lean, agile, and effective as 
possible. The DHS Privacy Office will continue to invest in our 
workforce and create a sound regulatory framework that ensures the 
reliability and consistency of FOIA processing across the Department, 
and I will continue to seek new solutions for coordinating our efforts 
and better managing the backlog.
    Thank you for holding this important hearing today. I appreciate 
your dedication to ensuring that DHS is meeting its obligations to 
provide transparency and demonstrate accountability to the public while 
protecting information that could be used to attack our homeland or 
otherwise damage sensitive interests like personal privacy. I look 
forward to answering your questions.

    Ms. Torres Small. That was perfectly timed, as well. Thank 
you for your testimony.
    I now recognize Ms. Meckley to summarize her statement for 
5 minutes.

  STATEMENT OF TAMMY MECKLEY, ASSOCIATE DIRECTOR, IMMIGRATION 
RECORDS AND IDENTITY SERVICES DIRECTORATE, U.S. CITIZENSHIP AND 
   IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY

    Ms. Meckley. Chairwomen Torres Small, Ranking Member 
Crenshaw, Chairman Thompson, Ranking Member Rogers, and 
distinguished Members of the subcommittee, thank you for the 
opportunity to testify today regarding U.S. Citizenship and 
Immigration Services' procedures for responding to FOIA 
requirements.
    As you know, USCIS administers the Nation's lawful 
immigration system, safeguarding its integrity and promise by 
efficiently and fairly adjudicating requests for immigration 
benefits, while protecting Americans, securing the homeland, 
and honoring our values.
    I currently serve as a senior executive for USCIS, as 
associate director of the immigration records and identity 
services directorate, IRIS. I am responsible for providing 
stakeholders with timely and appropriate access to trusted 
immigration information services in support of the missions and 
goals of USCIS and the Department of Homeland Security. I have 
over 20 years of experience with the U.S. Federal Government in 
the Departments of Homeland Security and Justice, as well as 
executive positions in the private sector. Currently I lead 
nearly 1,000 Federal employees and manage an annual program 
budget of approximately 450 million across 3 divisions: 
Verification, identity, and information management, and the 
National Records Center, NRC.
    The NRC manages and operates the USCIS FOIA Privacy Act 
program. Since 1967, FOIA has provided the public the right to 
request access to records from the--any Executive branch 
agency. It is often described as the law that keeps citizens in 
the Government--in-the-know about Government.
    Agencies are required to disclose any information requests 
under FOIA, unless it falls under 1 of 9 exemptions, which 
protects interests such as personal privacy, National security, 
and law enforcement.
    FOIA also requires agencies to proactively post on-line 
certain categories of information, including frequently-
requested records.
    As Congress, the President, and the Supreme Court have all 
recognized, FOIA is a vital part of our democracy.
    In terms of requests received, the USCIS FOIA program is 
the largest within the Federal Government. During fiscal year 
2019, USCIS received over 200,000 requests. The average number 
of pages processed in each case is over 260, with a maximum of 
50,000 pages for a single request. USCIS has seen and continues 
to expect the volume of requests to steadily grow at a 5 to 10 
percent rate each year. Individuals or the representatives 
seeking access to immigration records commonly known as alien 
files, or A-files, file the majority of requests.
    USCIS is focused on modernizing and streamlining the way 
FOIA requests are handled. USCIS is pleased to announce that in 
July 2019, the launch of its end-to-end digital FOIA 
immigration records system, known as FIRST. FIRST is the only 
FOIA system in the Government that currently enables on-line 
submission, on-line case management, electronic processing, and 
digital delivery of FOIA responses. Previously, USCIS only 
accepted FOIA requests by mail, fax, and email, and requesters 
typically received documents on a compact disc by mail. Now 
FOIA requesters can create an on-line USCIS account to submit 
and receive documents digitally, eliminating time and expense 
associated with receiving and sending requests by mail.
    Early indications are that FOIA processors are almost 
doubling productivity. USCIS is now seeing a reduction in 
processing times of 22.5 minutes per case. The digital request, 
management, and delivery process will save time, improve 
efficiency, and eliminate potential errors that can occur when 
manually handling paper. Requesters have reported that they can 
easily create and log into their account, file requests on-
line, manage requests, and access responsive documents posted 
to their account.
    Since the initial roll-out of FIRST, over 128,000 accounts 
have been created, and nearly 26,500 cases have been delivered 
digitally. These efforts are already showing significant 
improvement to FOIA operations. The FOIA backlog has been 
reduced by 64 percent during fiscal year 2019, and it is on 
schedule to be eliminated by this fiscal year.
    USCIS has dedicated employees who work tirelessly to serve 
this community and deliver accurate and comprehensive 
responses. I am proud to work with them, and call them my 
colleagues.
    In addition to improving the efficiencies of responding to 
FOIA requests, USCIS has also expanded and made public data and 
information about various operations through its electronic 
reading room, the ERR. Sharing accurate and timely data and 
information enhances policy making, improves the public's 
understanding of the Nation's immigration system, and ensures 
compliance with required reporting mandates.
    In accordance with FOIA, USCIS has posted to the ERR over 
4,321 administrative appeals and 103 pieces of correspondence 
between agency leadership and various stakeholders. These 
actions show USCIS's commitment to increasing the amount of 
information the agency proactively discloses, and demonstrates 
transparency, sound stewardship, and the efficient use of 
Government resources.
    Processing information once and releasing it publicly 
provides a significantly greater benefit to the public without 
additional expense to the Government.
    Thank you again for the opportunity to testify regarding 
this important matter, and I look forward to answering any 
questions you may have.
    [The prepared statement of Ms. Meckley follows:]
                  Prepared Statement of Tammy Meckley
                            October 17, 2019
                              introduction
    Chairwoman Torres Small, Ranking Member Crenshaw, Chairman 
Thompson, Ranking Member Rogers, and distinguished Members of the 
subcommittee, thank you for the opportunity to testify today regarding 
U.S. Citizenship and Immigration Services' (USCIS) procedures for 
responding to the Freedom of Information Act (FOIA) requirements. As 
you know, USCIS administers the Nation's lawful immigration system, 
safeguarding its integrity and promise by efficiently and fairly 
adjudicating requests for immigration benefits while protecting 
Americans, securing the homeland, and honoring our values.
    I currently serve as a senior executive for USCIS as the associate 
director of the Immigration Records and Identity Services Directorate 
(IRIS). I am responsible for providing stakeholders with timely and 
appropriate access to trusted immigration information and services in 
support of the missions and goals of USCIS and the Department of 
Homeland Security (DHS). I have over 20 years of experience with the 
U.S. Federal Government in the Departments of Homeland Security and 
Justice, as well as key executive positions in the private sector. 
Currently, I lead nearly 1,000 Federal employees and manage an annual 
program budget of approximately $450 million across three divisions: 
Verification, Identity and Information Management, and the National 
Records Center (NRC). The NRC manages and operates the USCIS FOIA/
Privacy Act (PA) Program.
         uscis freedom of information act/privacy act overview
    Since 1967, FOIA has provided the public the right to request 
access to records from any Executive branch agency. It is often 
described as the law that keeps citizens in the know about Government. 
Agencies are required to disclose any information requested under FOIA 
unless it falls under 1 of 9 exemptions, which protect interests such 
as personal privacy, National security, and law enforcement. FOIA also 
requires agencies to proactively post on-line certain categories of 
information, including frequently requested records. As Congress, the 
President, and the Supreme Court have all recognized, FOIA is a vital 
part of our democracy.
    In terms of requests received, the USCIS FOIA/PA Program is the 
largest within the Federal Government. During fiscal year 2019, USCIS 
received over 200,000 FOIA/PA requests. The average number of pages 
processed in each case is over 260, with a maximum of 50,000 pages for 
a single request. USCIS has seen, and continues to expect, the volume 
of requests to steadily grow at a 5 to 10 percent rate each year. 
Individuals or their representatives seeking access to immigration 
records (commonly known as Alien Files or A-Files) file the majority of 
these requests.
    USCIS is focused on modernizing and streamlining the way FOIA 
requests are handled. USCIS was pleased to announce, in July 2019, the 
launch of its end-to-end digital FOIA Immigration Records System, known 
as ``FIRST.'' FIRST is the only FOIA system in the Government that 
currently enables on-line submission, on-line case management, 
electronic processing, and digital delivery of FOIA responses. 
Previously, USCIS only accepted FOIA requests by mail, fax, and email, 
and requestors typically received documents on a compact disc by mail. 
Now, FOIA requestors can create an on-line USCIS account to submit and 
receive documents digitally, eliminating the time and expense 
associated with receiving and sending requests by mail.
    Early indications are that FOIA processors are almost doubling 
productivity. USCIS is now seeing a reduction in processing times of 
22.5 minutes per case. This digital request, management, and delivery 
process will save time, improve efficiency, and eliminate potential 
errors that can occur with manually handling paper.
    Requestors report that they can easily create and login to their 
account; file requests on-line; manage requests; and access responsive 
documents posted to their account. Since the initial rollout of FIRST, 
over 128,000 accounts have been created and nearly 26,500 cases have 
been delivered digitally.
    These efforts are already showing significant improvement to FOIA 
operations. The FOIA backlog was reduced by 64 percent during fiscal 
year 2019, and is on schedule to be eliminated in fiscal year 2020. 
USCIS has dedicated employees who work tirelessly to serve this 
community and deliver accurate and comprehensive responses. I am proud 
to work with them and call them my colleagues.
                  uscis electronic reading room (err)
    In addition to improving the efficiencies of responding to FOIA 
requests, USCIS has also expanded and made public data and information 
about various operations through its Electronic Reading Room (ERR). 
Sharing accurate and timely data and information enhances policy 
making, improves public understanding of the Nation's immigration 
system, and ensures compliance with required reporting mandates. In 
accordance with the FOIA statute, USCIS has posted to the ERR records 
that the agency determined were likely to become the subject of 
subsequent requests for substantially similar records.
    The ERR now contains nearly 50 different categories of documents 
with wide-ranging topics. In fiscal year 2019, USCIS posted 4,321 
Administrative Appeals Decisions and 103 pieces of correspondence 
between agency leadership and various stakeholders. These actions show 
USCIS' commitment to increasing the amount of information the agency 
proactively discloses and demonstrates transparency, sound stewardship, 
and efficient use of Government resources. Processing information once 
and releasing it publicly provides a significantly greater benefit to 
the public without additional expense to the Government.
                               conclusion
    Thank you again for the opportunity to testify regarding this 
important matter. I look forward to answering any questions you may 
have.

    Ms. Torres Small. Thank you.
    I now recognize Ms. Semo to summarize her statement for 5 
minutes.

  STATEMENT OF ALINA M. SEMO, DIRECTOR, OFFICE OF GOVERNMENT 
      INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS 
                         ADMINISTRATION

    Ms. Semo. Good afternoon, Chairwoman Torres Small, Ranking 
Member Crenshaw, and Members of the subcommittee. I am Alina 
Semo, and I was appointed as the director of the Office of 
Government Information Services, OGIS, by the archivist of the 
United States, David Ferriero, in November 2016. Thank you for 
the opportunity to appear before you today to discuss OGIS's 
review of the administration of the FOIA at the Department of 
Homeland Security.
    As the Federal FOIA ombudsman, OGIS resolves Federal FOIA 
disputes between requesters and agencies; reviews agency FOIA 
policies, procedures, and compliance; identifies procedures and 
methods to improve compliance with the FOIA statute; and 
educates our stakeholders about the FOIA process. My staff of 9 
conducts its work as an advocate for the FOIA process itself.
    In my time before you today I will highlight our reviews of 
the FOIA programs at 7 DHS components, as well as our 
assessment of the DHS Privacy Office.
    First, a brief word about our agency compliance 
assessments. Between September 2015 and February 2018 we 
published a total of 8 assessment reports on DHS components, 
all publicly available on our website. It is important to note 
that the assessments we conduct are snapshots in time, and our 
findings and recommendations may no longer apply, or may have 
been addressed subsequently by each DHS component.
    In conducting the 8 DHS assessments we surveyed nearly 500 
FOIA professionals and reviewed a sample of more than 1,500 
FOIA requests that have been processed in the most recent 
fiscal year prior to each of our assessments. For example, we 
assessed the FOIA program at TSA, which processed fewer than 
1,000 requests in fiscal year 2014, and the Government's 
largest FOIA program at USCIS, which processed more than 
145,000 FOIA requests in fiscal year 2016. We made a total of 
86 recommendations in our assessments of FEMA, Coast Guard, 
TSA, CBP, Secret Service, ICE, and the DHS Privacy Office. And 
out of those 86 recommendations, we have closed 84, which 
represents an almost 98 percent rate of closure.
    Our agency assessment program recognizes that there is no 
one-size-fits-all approach to administering FOIA, as each 
agency's records are unique and their FOIA processes are as 
diverse as agency's missions. But during the course of 13 
agency assessments, including 5 at non-DHS agencies, we have 
noted some particular trends in our findings.
    In the area of management our findings indicate that 
successful FOIA programs generally have strong leadership 
support at the most senior levels, and use management 
techniques that ensure staff have a clear understanding of 
their roles and responsibilities.
    Our findings also show the value of investments in 
technology, as well as the importance of training FOIA staff to 
use available technology tools and sufficient IT support.
    Finally, we continue to observe that good communication 
with requesters helps ensure a smooth FOIA process, and helps 
to prevent disputes that may otherwise lead to litigation.
    Our recommendations range from short-term and easily 
implemented to the long-term and ambitious. For example, we 
recommended that agencies edit template letters to remove 
jargon and confusing language, or add to template letters 
language to explain why certain material is covered by 1 of 
FOIA's 9 exemptions.
    Our larger-scale recommendations have included such actions 
as developing processes to reduce duplication during processing 
when a request is--involves records originating from more than 
1 DHS component, a recommendation that is mirrored in the GAO's 
November 2014 report.
    Our assessment of the DHS Privacy Office was unique in that 
we assessed whether the DHS privacy officer, who serves as the 
chief FOIA officer, fulfills several specific statutory 
responsibilities. Our recommendation was that the DHS chief 
FOIA officer adopt a standard procedure and method for issuing 
guidance, similar to the manner in which the U.S. Department of 
Justice's Office of Information Policy issues Government-wide 
FOIA guidance. This would improve DHS components' compliance 
with FOIA and adherence to DHS FOIA policy.
    Moreover, we recommended that issues of non-compliance 
should be raised up to the Secretary's office when warranted, 
and that the DHS Privacy Office should issue additional 
recommendations or corrective actions as necessary to bring 
components into compliance with law and DHS policy.
    I appreciate the opportunity to appear before the 
subcommittee today. I look forward to answering any questions 
you may have. Thank you.
    [The prepared statement of Ms. Semo follows:]
                  Prepared Statement of Alina M. Semo
                            October 17, 2019
    Good afternoon Chairwoman Torres Small, Ranking Member Crenshaw, 
and Members of the subcommittee. I am Alina Semo, and I was appointed 
as the director of the Office of Government Information (OGIS) by the 
archivist of the United States, David Ferriero, as of November 2016.
    Thank you for the opportunity to appear before you to discuss 
OGIS's review of the administration of the Freedom of Information Act 
(FOIA) by the Department of Homeland Security (DHS).
    As the Federal FOIA ombudsman, OGIS offers a range of services to 
help anyone through the FOIA process. My staff of 9 helps to resolve 
Federal FOIA disputes; educates stakeholders about the FOIA process; 
reviews agency FOIA policies, procedures, and compliance; and 
identifies procedures and methods for improving compliance. All of our 
work is conducted through the lens of advocating for neither the 
requester nor the agency, but rather for the FOIA process itself.
    Earlier this month, we celebrated our 10th anniversary. While we 
have offered dispute resolution services since 2009, our compliance 
program is still young--we conducted our first agency assessment in 
November 2014 by reviewing one of the FOIA programs at our own agency, 
the National Archives and Records Administration (NARA). Earlier that 
year, before we even had our compliance program up and running, DHS 
approached OGIS to request that we review several DHS FOIA programs. We 
were able to turn our attention to particular DHS FOIA programs in 
2015.
    Today I will briefly discuss our compliance work generally, and 
focus more specifically on our assessments of 7 FOIA programs at DHS 
that we conducted between September 2015 and February 2018. 
Additionally, I will discuss our December 2016 assessment of DHS's 
compliance with the responsibilities for chief FOIA officers as 
mandated in the FOIA statute.
    Our agency assessment program is just one piece of a robust FOIA 
compliance program that also includes assessing FOIA process issues; 
reviewing agency FOIA regulations; identifying and addressing 
Government-wide compliance issues using responses to self-assessment 
questions; and managing the FOIA advisory committee, which I chair, and 
which brings together FOIA experts from inside and outside of 
Government appointed by the archivist of the United States to identify 
solutions to FOIA's biggest challenges.
    It is important to note that while we review compliance, we are not 
the ``FOIA police,'' and as I mentioned earlier, we advocate for the 
FOIA process to work as Congress intended. It is also important to note 
that the assessments we conduct are snapshots in time and our findings 
and recommendations may no longer apply--or have been addressed 
subsequently by each DHS component. We follow up with agencies 120 days 
after our assessments are published, and our follow-up track record 
shows that overall agencies have addressed approximately 98 percent of 
our recommendations.
    Our assessments of agency FOIA programs are based on generally 
accepted Government auditing standards (GAGAS) and offer agencies a 
holistic review of their FOIA programs. We rely on our staff's 
knowledge of the FOIA process and on best practices to identify issues 
in the administration of FOIA and make tailored recommendations. Our 
compliance assessment process recognizes that there is no ``one-size-
fits-all'' approach to administering FOIA--each agency's records are 
unique and FOIA processes are as diverse as agency missions. 
Nevertheless, we have observed that successful FOIA programs share 3 
general characteristics: They manage their resources appropriately; 
they use technology effectively; and they communicate well with 
requesters.
    The 7 DHS FOIA programs my team reviewed, in the order of our 
assessment reports, were at (1) Federal Emergency Management Agency 
(FEMA)--September 18, 2015; (2) United States Coast Guard (Coast 
Guard)--September 25, 2015; (3) Transportation Security Administration 
(TSA)--January 11, 2016; (4) Customs and Border Protection (CBP)--March 
9, 2016; (5) United States Secret Service (USSS)--July 27, 2016; (6) 
Immigration and Customs Enforcement (ICE)--October 18, 2016; and (7) 
U.S. Citizenship and Immigration Services (USCIS)--February 9, 2018.
    In assessing these 7 FOIA programs, we surveyed nearly 500 FOIA 
professionals and reviewed a sampling of more than 1,500 FOIA requests 
that had been processed in the most recent fiscal year prior to each of 
our assessments. For example, we assessed the FOIA program at TSA which 
processed fewer than 1,000 requests in fiscal year 2014 and the 
Government's largest FOIA program at USCIS which processed 145,470 FOIA 
requests in fiscal year 2016.
    I will discuss the 3 buckets of recommendations that I mentioned 
earlier--management, technology, and communication--by providing 
examples from our 7 assessments of DHS components.
                               management
    In reviewing an agency's management of its FOIA program, we 
evaluate how a FOIA program is managing the resources it is given by 
the agency. Our assessments show the importance of strong management 
practices to the success of the program. For example, our assessment of 
CBP showed that support from leadership and a plan for addressing both 
the backlog and incoming requests enabled the FOIA program to drive 
down its backlog by 74 percent in fiscal year 2015--from 34,307 
requests to 9,024 requests.
    At TSA, we recommended that it create standard operating procedures 
for the entire FOIA process and that FOIA managers monitor the number 
of cases closed and volume of pages reviewed by each processor, and set 
data-driven goals to reduce the backlog and increase timeliness. In 
response, the agency reported that establishing performance metrics for 
FOIA analysts and case closure goals for the office helped reduce its 
backlog in 4 months.
    For USSS, we recommended that it create a formal data-driven 
backlog reduction plan and expand on the work the agency's FOIA program 
was already engaged in to keep requests out of the backlog by using 
multi-track processing and focusing on responding to older requests.
                               technology
    We also review how well an agency is using the technology resources 
it has. At several DHS components, we observed that technology was not 
being used to its fullest potential to administer FOIA. For example, 
FEMA had technological tools but the agency was not fully using the 
technology to improve FOIA tracking, processing, and proactive 
disclosure.
    In 2016, we observed at TSA a duplication of effort because of a 
separate review of records containing Sensitive Security Information 
(SSI). The FOIA tracking and processing system did not communicate with 
the SSI tracking and processing system. We recommended that the FOIA 
office work with the SSI office to resolve the duplication and 
inefficiencies.
    In 2016, we also recommended several actions aimed at getting 
different DHS components to collaborate more efficiently. For example, 
we recommended that ICE and USCIS explore electronic transmittal of 
misdirected FOIA requests which arrive at one agency but seek records 
at the other agency. We recommended that USSS discuss with USCIS a more 
efficient way to send requests it refers to USSS, possibly 
electronically.
    Finally, in 2018, we recommended that USCIS weigh the costs and 
benefits of producing digitized version of Alien Files (A-Files) the 
official Government record that contains information regarding 
transactions involving individuals as they pass through the U.S. 
immigration and inspection process. A machine-readable version could 
enable use of computer-assisted review tools which, in turn, could 
speed the process. We also recommended that USCIS explore technologies 
to mark records as processed and enable the FOIA processor to easily 
access the previously processed version of the record, which could cut 
down on inefficiencies in a system in which an A-File is often 
requested several times by a requester and/or their lawyer--but 
reprocessed each time for each new FOIA request.
                             communication
    In reviewing FOIA case files, we look at most--but not all--of an 
agency's administrative record. We do not review the underlying records 
that have been requested and the exemptions applied to those records.
    With regard to communication, we often find that more frequent and 
better communication with requesters in plain language goes far in 
helping requesters understand the FOIA process. As a result, our 
recommendations in this area have included providing requesters with 
additional information about certain records withholdings; updating and 
correcting FOIA websites and template letters; providing requesters 
with an estimated date of completion when they ask for one; and 
removing jargon and legalese in response letters.
    Finally, in December 2016 we assessed whether the DHS privacy 
officer, who serves as the DHS chief FOIA officer, fulfills several 
specific statutory responsibilities.\1\
---------------------------------------------------------------------------
    \1\ 5 U.S.C.  552(j).
---------------------------------------------------------------------------
    FOIA defines several actions that agency chief FOIA officers must 
take to support agency implementation of the law. The chief FOIA 
officer is required to:
   support efficient and appropriate compliance with FOIA and 
        make recommendations as necessary to improve implementation;
   provide oversight of FOIA operations by monitoring 
        implementation and reporting to the Attorney General as 
        required;
   support customer service by taking certain steps to improve 
        public understanding of FOIA and by designating one or more 
        FOIA public liaisons; and
   offer training to FOIA staff.
    While most of the 16 DHS directorates and components \2\ are 
responsible for processing FOIA requests and appeals for their own 
records, policy and program oversight is centralized at DHS. In August 
2011, the DHS Secretary delegated to the chief privacy officer the 
responsibility to fulfill duties related to FOIA and Privacy Act 
programs across the entire Department,\3\ and in July 2019, the DHS 
Secretary designated the chief privacy officer as the chief FOIA 
officer.\4\
---------------------------------------------------------------------------
    \2\ At the time of our assessment, there were 16 DHS directorates 
and components. There are now 14 directorates and components, accessed 
October 4, 2019, https://www.dhs.gov/operational-and-support-
components.
    \3\ ``Department of Homeland Security Delegation No. 13001,'' 
accessed October 2, 2019, https://www.dhs.gov/sites/default/files/
publications/cpo-delegation-letter-for-foia-2011_0.pdf.
    \4\ ``Department of Homeland Security Designation No. 00-13002,'' 
accessed October 9, 2019, https://www.dhs.gov/publication/designation-
chief-foia-officer.
---------------------------------------------------------------------------
    In reviewing DHS Privacy Office's compliance with chief FOIA 
officer duties, we did not review FOIA case files as we did at the DHS 
component assessments nor did we survey DHS Privacy Office FOIA staff. 
We did review DHS Privacy Office written policies and guidance, 
strategic and backlog reduction plans, interagency agreements, 
organizational charts and internal management reports. We also 
interviewed 7 key FOIA staff members.
    We found that the DHS Privacy Office met its obligation to support 
implementation of the FOIA by providing targeted services to 
components, including the creation of a Department-wide FOIA processing 
and tracking system; assisting with processing requests from component 
backlogs; and providing guidance on FOIA policy issues.
    The DHS Privacy Office met its responsibility to provide oversight 
through its reporting program in which it monitored the status of 
component FOIA programs monthly and raised issues with component chief 
FOIA officers as necessary. The Privacy Office also prepared annual 
reports required by the statute.
    In addition, the Privacy Office supported customer service by 
providing requesters with information on its FOIA webpage about how to 
make a FOIA request that furthers public understanding of FOIA. At the 
time of our assessment, the Privacy Office had a FOIA Public Liaison 
whose responsibility was to assist requesters and to resolve disputes. 
Additionally, the Privacy Office had launched information technology 
efforts that were intended to improve customer service across the 
Department.
    During our assessments of individual DHS component agencies, we 
noted several instances in which the DHS Privacy Office provided 
valuable assistance to DHS component agencies. For example, the Privacy 
Office's assistance with processing requests was key to reducing CBP's 
backlog in fiscal year 2015. During our assessments, however, we also 
observed a large variation in the use of the DHS-wide FOIA system's 
capabilities by participating component agencies and varying levels of 
success using technology to process requests by components that opted 
to not participate in the Department-wide system.
    As noted earlier, these assessments represent snapshots in time and 
our findings and recommendations may no longer apply.
    Moreover, during our assessments of DHS components, we observed 
inconsistency in awareness of--and adherence to--DHS FOIA policies. For 
example, while we found that most component agencies comply with DHS's 
``significant requests'' policy, the USSS FOIA office did not appear to 
follow the DHS Privacy Office's policy on ``significant requests'' that 
requires components to alert the Privacy Office 24 hours before it 
responds to significant requests.\5\
---------------------------------------------------------------------------
    \5\ ``Guidelines for Reporting on Significant FOIA Activity for 
Inclusion in the Cabinet Report to the White House, July 7, 2009,'' 
accessed October 2, 2019, http://www.dhs.gov/sites/default/files/
publications/
priv_cfoiao_memo_cabinet_report_foia_guidelines_20090707.pdf.
---------------------------------------------------------------------------
    We recommended to the DHS Privacy Office that adopting a standard 
procedure and method for issuing guidance, similar to the way in which 
the U.S. Department of Justice's Office of Information Policy does in 
issuing Government-wide FOIA policy, would improve DHS component 
agencies' compliance with FOIA and adherence to DHS FOIA policy. We 
recommended that the DHS chief FOIA officer adopt these practices, and, 
when warranted, issues of non-compliance should be raised to higher 
levels, including to the Secretary's office. Finally, we recommended 
that the DHS Privacy Office should also issue additional 
recommendations or corrective actions as necessary to bring component 
agencies into compliance with the law and DHS policy.
    In response to our assessment of the DHS Privacy Office, the 
Department took several steps to ensure that its FOIA program operate 
more efficiently, including issuing a management directive directing 
components to comply with FOIA law and DHS policy.\6\ The DHS Privacy 
Office also committed to raising issues of non-compliance with 
component offices and when necessary, the Secretary's office, and 
issuing recommendations to components as necessary to ensure compliance 
with the law.
---------------------------------------------------------------------------
    \6\ ``Freedom of Information Act Compliance,'' Department of 
Homeland Security Directive Number 262-11, accessed October 15, 2019, 
https://www.dhs.gov/sites/default/files/publications/
Directive%2026211%20Freedom%20of%20Information%20Act%20Compliance%20Apri
l%20- 2017.pdf.
---------------------------------------------------------------------------
    I hope the foregoing information regarding how OGIS conducts its 
agency assessments, and in particular our assessments of several DHS 
FOIA programs, has shed some light on how DHS works to administer FOIA. 
I appreciate the opportunity to appear before this subcommittee. I look 
forward to answering any questions you may have.

    Ms. Torres Small. Thank you, Ms. Semo, for your testimony.
    I now recognize Mr. D'Souza to summarize his statement for 
5 minutes.

STATEMENT OF VIJAY A. D'SOUZA, DIRECTOR, INFORMATION TECHNOLOGY 
    AND CYBERSECURITY, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. D'Souza. Charwoman Torres Small, Ranking Member 
Crenshaw, and Members of the committee, thank you for the 
opportunity to testify today on GAO's prior work regarding the 
Freedom of Information Act at today's hearing on FOIA 
implementation at DHS.
    My statement today summarizes 2 reports we issued looking 
at FOIA DHS. The first, issued in November 2014, was specific 
to DHS, and the second, issued in June 2018, looked at DHS as 
part of a broader review of FOIA implementation at multiple 
agencies.
    FOIA establishes a legal right of access to Government 
information to foster openness and accountability. However, its 
ability to do this is dependent on agencies successfully 
implementing it.
    DHS continues to receive the largest number of FOIA 
requests of any Federal department or agency, as several other 
people here have noted, almost 396,000 requests in fiscal year 
2018 alone. This accounts for over 40 percent of all requests 
within the Federal Government. As of the end of fiscal year 
2018, DHS had a backlog of almost 54,000 of these requests.
    I would like to highlight a few key points from our work on 
FOIA at DHS.
    First, in 2018, we examined whether DHS and selected other 
agencies have successfully implemented 6 key requirements to 
improve FOIA operations. I won't list all of them, but they 
included things such as implementing a tracking system for FOIA 
requests, providing training to agency staff, and designating a 
chief FOIA officer. We found that DHS had successfully 
implemented all 6 of the requirements we looked at.
    However, our 2 reports did identify challenges for DHS in 
effectively implementing FOIA, and I will discuss 2 of them 
now.
    First, as I mentioned earlier, DHS does have a substantial 
FOIA backlog. DHS and other agencies that have large FOIA 
backlogs are supposed to develop plans to address them. In 2018 
we did report on several steps DHS had taken to address its 
backlog, including efforts undertaken by both the Privacy 
Office, which has overall oversight of the FOIA program, as 
well as individual DHS components, including CBP, USCIS, and 
ICE.
    However, we reported that DHS did not have an overall plan 
to address the backlog in a sustainable manner, which is 
something we think is important in addressing this issue. As of 
October 2019, DHS reported that it had developed a draft 
backlog reduction plan that was being reviewed by its 
components, but it hasn't indicated when the plan would be 
released. Successful completion of this plan would help DHS 
address its FOIA backlog.
    Second, as others have also noted, our 2014 report 
identified duplication in DHS's FOIA process for requests 
involving immigration files, specifically. Immigration files 
contain information from multiple DHS components and other 
Federal agencies. Within DHS, USCIS is the custodian for these 
files and the starting point for processing FOIA requests on 
them.
    However, CBP and ICE also have information in these files 
and have to review them prior to release. We reported that 
USCIS was able to process requests involving both USCIS and CBP 
documents. However, it couldn't do this for ICE documents. The 
reason is that ICE didn't have an agreement to let USCIS handle 
ICE's part of the request. Instead, USCIS provided portions of 
the file for ICE to review, track, and release separately. This 
caused unnecessary duplication and delays in the process.
    In 2014 we recommended that USCIS and ICE consider re-
establishing a previous agreement they had to allow USCIS to 
process ICE-related FOIA requests. However, as of October 2019, 
they had not done so.
    In conclusion, given the large number of FOIA requests that 
DHS has and will continue to receive, successful implementation 
of these 2 recommendations on a backlog plan and reducing 
duplication, as well as our other FOIA-related recommendations, 
will help DHS better meet its responsibilities under this 
important law.
    Madam Chairwoman and Mr. Ranking Member, this concludes my 
statement. I am happy to answer any questions you may have.
    [The prepared statement of Mr. D'Souza follows:]
                 Prepared Statement of Vijay A. D'Souza
                       Thursday, October 17, 2019
                             gao highlights
    Highlights of GAO-20-209T, a testimony before the Subcommittee on 
Oversight, Management and Accountability, Committee on Homeland 
Security, House of Representatives.
Why GAO Did This Study
    FOIA requires Federal agencies to provide the public with access to 
Government records and information based on the principles of openness 
and accountability in Government. Each year, individuals and entities 
file hundreds of thousands of FOIA requests. DHS continues to receive 
and process the largest number of FOIA requests of any Federal 
department or agency. For fiscal year 2018, over 40 percent of Federal 
FOIA requests (about 396,000) belonged to DHS.
    GAO was asked to summarize its November 2014 and June 2018 reports 
which addressed, among other things, (1) DHS's methods to reduce 
backlogged FOIA requests and (2) duplication in DHS's processing of 
FOIA requests.
    In conducting this prior work, GAO evaluated the Department's and 
components' FOIA policies, procedures, reports, and other 
documentation; and interviewed agency officials. GAO also followed up 
on its recommendations to determine their implementation status.
What GAO Recommends
    In its prior reports, GAO made 5 recommendations to DHS. These 
included, among other things, that DHS: (1) Take steps to develop and 
document a plan that fully addressed best practices with regard to 
reducing the number of backlogged FOIA requests and (2) eliminate 
duplicative processing of immigration-related requests. The Department 
agreed with the recommendations. However, as of October 2019, DHS had 
not fully implemented all of them.
 freedom of information act.--dhs needs to reduce backlogged requests 
                   and eliminate duplicate processing
What GAO Found
    The Department of Homeland Security's (DHS) responsibilities for 
processing Freedom of Information Act (FOIA) requests are split between 
the Department's Privacy Office, which acts as its central FOIA office, 
and FOIA offices in the Department's component agencies, such as U.S. 
Citizenship and Immigration Services and Immigration and Customs 
Enforcement. In 2018, GAO reported that DHS had implemented several 
methods to reduce backlogged FOIA requests, including sending monthly 
emails to its components on backlog statistics and conducting 
oversight. In addition, several DHS components, implemented actions to 
reduce their backlogs. Due to efforts by the Department, the backlog 
dropped 66 percent in fiscal year 2015, decreasing to 35,374 requests. 
Although there was initial progress by the end of fiscal year 2015, the 
number of backlogged requests increased in fiscal years 2016 and 2018 
(see figure). One reason DHS was struggling to consistently reduce its 
backlogs is that it lacked documented, comprehensive plans that would 
provide a more reliable, sustainable approach to addressing backlogs 
and describe how it will implement best practices for reducing backlogs 
over time.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    DHS attributed the increase in its FOIA backlogs to several 
factors, including the increased numbers and complexity of requests 
received and the volume of responsive records for those requests. Until 
it develops a plan to implement best practices to reduce its backlogs, 
DHS will likely continue to struggle to reduce the backlogs to a 
manageable level.
    In addition, in 2014 GAO reported that certain immigration-related 
requests were processed twice by 2 different DHS components. The 
duplicate processing of such requests by the 2 components contributed 
to an increase in the time needed to respond to the requests. GAO 
continued to report this issue in its 2019 annual product on 
opportunities to reduce fragmentation, overlap, and duplication.
    Chairwoman Torres Small, Ranking Member Crenshaw, and Members of 
the subcommittee: Thank you for the opportunity to participate in 
today's hearing regarding Freedom of Information Act (FOIA) 
implementation at the Department of Homeland Security (DHS). FOIA, 
which was enacted into law more than 50 years ago, requires Federal 
agencies to provide the public with access to Government records and 
information based on the principles of openness and accountability in 
Government.
    Each year, individuals and entities file hundreds of thousands of 
FOIA requests for information on numerous topics that contribute to the 
understanding of Government actions. Given the significance of FOIA, 
Congress has had a longstanding interest in the manner in which the act 
is being implemented, including the extent to which Federal agencies 
respond to FOIA requests and the timeliness of the responses.
    DHS is one of the many agencies that respond to FOIA requests. DHS 
continues to receive and process the largest number of these requests 
of any Federal department or agency--annually receiving and processing 
over 40 percent of all requests within the Federal Government.
    In 2014 and 2018, we issued reports that discussed key aspects of 
FOIA at DHS. Our work examined, among other things, the Department's 
implementation of selected FOIA requirements; DHS's methods to reduce 
backlogged requests; and duplication in the Department's processing of 
FOIA requests.
    At your request, my testimony for this hearing summarizes the 
results discussed in our prior reports on FOIA implementation at 
DHS.\1\ Detailed information about our objectives, scope, and 
methodology for that work can be found in the issued reports. In 
addition, we reviewed information that DHS provided to us on the 
current status of its efforts to implement recommendations from those 
reports and its current FOIA workload and backlog.
---------------------------------------------------------------------------
    \1\ GAO, Freedom of Information Act: Agencies Are Implementing 
Requirements, but Additional Actions Are Needed, GAO-18-365 
(Washington, DC: June 25, 2018) and GAO, Freedom of Information Act: 
DHS Should Take Steps to Improve Cost Reporting and Eliminate Duplicate 
Processing, GAO-15-82 (Washington, DC: Nov. 19, 2014).
---------------------------------------------------------------------------
    We conducted the work on which this statement is based in 
accordance with generally accepted Government auditing standards. Those 
standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives.
                               background
    The Freedom of Information Act establishes a legal right of access 
to Government information on the basis of the principles of openness 
and accountability in Government.\2\ Before FOIA's enactment in 
1966,\3\ an individual seeking access to Federal records faced the 
burden of establishing a ``need to know'' before being granted the 
right to examine a Federal record. FOIA established a ``right to know'' 
standard, under which an organization or person could receive access to 
information held by a Federal agency without demonstrating a need or 
reason. The ``right to know'' standard shifted the burden of proof from 
the individual to a Government agency and required the agency to 
provide proper justification when denying a request for access to a 
record.
---------------------------------------------------------------------------
    \2\ 5 U.S.C.  552.
    \3\ The law was enacted in 1966 and went into effect in 1967.
---------------------------------------------------------------------------
    Any person, defined broadly to include attorneys filing on behalf 
of an individual, corporations, or organizations, can file a FOIA 
request. For example, an attorney can request labor-related workers' 
compensation files on behalf of his or her client, and a commercial 
requester, such as a data broker who files a request on behalf of 
another person, may request a copy of a Government contract. In 
response, an agency is required to provide the relevant record(s) in 
any readily producible form or format specified by the requester, 
unless the record falls within a permitted exemption that provides 
limitations on the disclosure of information.
FOIA Amendments and Guidance Call for Improvements in How Agencies 
        Process Requests
    Various amendments have been enacted and guidance issued to help 
improve agencies' processing of FOIA requests. For example:
   The Electronic Freedom of Information Act Amendments of 1996 
        (1996 FOIA amendment) strengthened the requirement that Federal 
        agencies respond to a request in a timely manner and reduce 
        their backlogged requests.\4\
---------------------------------------------------------------------------
    \4\ Electronic Freedom of Information Act Amendments of 1996, Pub. 
L. No. 104-231 (Oct. 2, 1996).
---------------------------------------------------------------------------
   Executive Order 13392, issued by the President in 2005, 
        directed each agency to designate a senior official as its 
        chief FOIA officer.\5\ This official was to be responsible for 
        ensuring agency-wide compliance with the act. The chief FOIA 
        officer was directed to review and report on the agency's 
        performance in chief FOIA officer reports.
---------------------------------------------------------------------------
    \5\ The White House, Improving Agency Disclosure of Information, 
Executive Order 13392 (Washington, DC: Dec. 14, 2005).
---------------------------------------------------------------------------
   The OPEN Government Act, which was enacted in 2007 (2007 
        FOIA amendment), made the 2005 Executive Order's requirement 
        for agencies to have a chief FOIA officer a statutory 
        requirement.\6\ It also required agencies to include additional 
        statistics, such as more details on processing times, in their 
        annual FOIA reports.
---------------------------------------------------------------------------
    \6\ Openness Promotes Effectiveness in our National Government Act 
of 2007, Pub. L. No. 110-175 (Dec. 31, 2007).
---------------------------------------------------------------------------
   The FOIA Improvement Act of 2016 (2016 FOIA amendment) 
        addressed procedural issues, including requiring that agencies: 
        (1) Make records available in an electronic format if they have 
        been requested 3 or more times; (2) notify requesters that they 
        have not less than 90 days to file an administrative appeal, 
        and (3) provide dispute resolution services at various times 
        throughout the FOIA process.\7\ Further, the act required OMB, 
        in consultation with the Department of Justice, to create a 
        consolidated on-line FOIA request portal that allows the public 
        to submit a request to any agency through a single website.
---------------------------------------------------------------------------
    \7\ FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 
538 (2016) (provisions codified at 5 U.S.C.  552).
---------------------------------------------------------------------------
FOIA Request Process
    The 1996 FOIA amendment required agencies, including DHS, to 
generally respond to a FOIA request within 20 working days. Once 
received, the request is to be processed through multiple phases, which 
include assigning a tracking number, searching for responsive records, 
and releasing the records to the requester.
    In responding to requests, FOIA authorizes agencies to use 9 
exemptions to withhold portions of records, or the entire record. These 
9 exemptions can be applied by agencies to withhold various types of 
information, such as information concerning foreign relations, trade 
secrets, and matters of personal privacy. FOIA allows a requester to 
challenge an agency's final decision on a request through an 
administrative appeal or a lawsuit. Agencies generally have 20 working 
days to respond to an administrative appeal.
DHS Covers Many Areas of Government Information
    Created in 2003, DHS assumed control of about 209,000 civilian and 
military positions from 22 agencies and offices that specialize in one 
or more aspects of homeland security. By the nature of its mission and 
operations, the Department creates and has responsibility for vast and 
varied amounts of information covering, for example, immigration, 
border crossings, law enforcement, natural disasters, maritime 
accidents, and agency management.
    According to its 2018 Chief FOIA Officer Report, DHS's 
organizational structure consists of 24 offices, directorates, and 
components. FOIA requests are split between the Department's Privacy 
Office, which acts as its central FOIA office, and FOIA offices in the 
Department's component agencies.
    Three of the major operational components of DHS are:
   U.S. Citizenship and Immigration Services (USCIS) promotes 
        an awareness and understanding of citizenship, and ensures the 
        integrity of the Nation's immigration system. Its records 
        include asylum application files and other immigration-related 
        documents.
   Customs and Border Protection (CBP) secures the border 
        against transnational threats and facilitates trade and travel 
        through the enforcement of Federal laws and regulations 
        relating to immigration, drug enforcement, and other matters. 
        The agency maintains records related to agency operations, 
        activities, and interactions.
   Immigration and Customs Enforcement (ICE) promotes homeland 
        security and public safety through the criminal and civil 
        enforcement of Federal laws governing border control, customs, 
        trade, and immigration. It maintains information related to the 
        law enforcement records of immigrants and detainees, as well as 
        information pertaining to human trafficking/smuggling, gangs, 
        and arrest reports.
    According to its 2018 Chief FOIA Officer Report, DHS and its 
component agencies reported that they processed 374,945 FOIA requests 
in fiscal year 2018--the most of any Federal Government agency. As of 
its 2018 report, the Department had a backlog of 53,971 unprocessed 
requests--the largest backlog of any Federal agency.
   dhs implemented 6 key foia requirements to help improve its foia 
                               operations
    Amendments and guidance relating to FOIA call for agencies, 
including DHS, to implement key requirements aimed at improving the 
processing of requests. Among others, these requirements call for 
agencies to: (1) Update response letters, (2) implement tracking 
systems, (3) provide FOIA training, (4) provide records on-line, (5) 
designate chief FOIA officers, and (6) update and publish timely and 
comprehensive regulations. As we noted in our June 2018 report, DHS had 
implemented these 6 FOIA requirements.
    Update response letters.--The FOIA amendments require that certain 
information be included in agency response letters. For example, if 
part of a FOIA request is denied, agencies are required to inform 
requesters that they may:
   seek assistance from the FOIA public liaison of the agency 
        or the National Archives and Records Administration's Office of 
        Government Information Services (OGIS);\8\
---------------------------------------------------------------------------
    \8\ The National Archives and Records Administration's OGIS was 
established by the OPEN Government Act of 2007 as the Federal FOIA 
ombudsman tasked with resolving Federal FOIA disputes through mediation 
as a nonexclusive alternative to litigation.
---------------------------------------------------------------------------
   file an appeal to an adverse determination within a period 
        of time that is not less than 90 days after the date of such 
        adverse determination; and
   seek dispute resolution services from the FOIA public 
        liaison of the agency or OGIS.
    DHS had updated its FOIA response letters to include this specific 
information, as required per the amendments.
    Implement tracking systems.--DHS used commercial automated systems, 
as called for by various FOIA amendments and guidance, and had 
established telephone or internet services to assist requesters in 
tracking the status of a request.\9\ The Department used modern 
technology (e.g., mobile applications) to inform citizens about FOIA. 
The commercial systems allowed requesters to submit a request and track 
the status of that request on-line. In addition, DHS developed a mobile 
application that allowed FOIA requesters to submit a request and check 
its status. The Department's FOIA tracking systems were compliant with 
requirements of Section 508 of the Rehabilitation Act of 1973 (as 
amended), which required Federal agencies to make their electronic 
information accessible to people with disabilities.
---------------------------------------------------------------------------
    \9\ The Openness Promotes Effectiveness in our National (OPEN) 
Government Act of 2007, Pub. L. No. 110-175 (Dec. 31, 2007).
---------------------------------------------------------------------------
    Provide FOIA training.--DHS' chief FOIA officer offered FOIA 
training opportunities to staff in fiscal years 2016 and 2017, as 
required by the 2016 FOIA amendments. Specifically, the Department 
provided training in responding to, handling, and processing FOIA 
requests.
    Provide records on-line.--DHS posted records on-line for 3 
categories of information, agency final opinions and orders, statements 
of policy, and frequently requested orders as required by 2009 
memorandums from both the President and the Attorney General.\10\
---------------------------------------------------------------------------
    \10\ The Department of Justice, The Freedom of Information Act, 
Attorney General Memorandum (Mar. 19, 2009) and the White House, 
Freedom of Information Act, Presidential Memorandum (Jan. 21, 2009).
---------------------------------------------------------------------------
    Designate chief FOIA officers.--DHS designated its chief privacy 
officer as its chief FOIA officer. This position was a senior official 
at the assistant secretary or equivalent level, as required by a 2005 
Executive Order \11\ and the 2007 FOIA amendments.
---------------------------------------------------------------------------
    \11\ The White House, Improving Agency Disclosure of Information, 
Executive Order 13392 (December 19, 2005).
---------------------------------------------------------------------------
    Update and publish timely and comprehensive regulations.--Guidance 
from the Department of Justice Office of Information Policy (OIP)\12\ 
encourages agencies to, among other things, describe their dispute 
resolution process; describe their administrative appeals process; 
notify requesters that they have a minimum of 90 days to file an 
administrative appeal; include a description of unusual circumstances 
and restrictions on an agency's ability to charge certain fees when 
FOIA's times limits are not met;\13\ and update agency regulations in a 
timely manner (i.e., update regulations by 180 days after the enactment 
of the 2016 FOIA amendment). DHS had addressed these 5 requirements in 
updating its regulations, as called for in the 2016 FOIA amendment and 
in related OIP guidance.
---------------------------------------------------------------------------
    \12\ Justice's OIP is responsible for encouraging agencies' 
compliance with FOIA and overseeing their implementation of the act.
    \13\ According to Justice guidance, an unusual circumstance is 
defined as, for example, an agency's need to search for, collect, and 
appropriately examine a voluminous amount of separate and distinct 
records which are demanded in a single request. An unusual 
circumstances fee may be charged if, among other things, a timely 
notice of unusual circumstances is provided to the requester and a 
response to the request is made within the 10-day extension.
---------------------------------------------------------------------------
      dhs identified methods for backlog reduction, but still had 
                              fluctuations
    The Attorney General's March 2009 memorandum called on agency chief 
FOIA officers to review all aspects of their agencies' FOIA 
administration and report to Justice on steps that have been taken to 
improve FOIA operations and disclosure.\14\ Subsequent Justice guidance 
directed agencies that had more than 1,000 backlogged requests in a 
given year to describe their plans to reduce their backlogs. Beginning 
in calendar year 2015, these agencies were to describe how they had 
implemented their plans from the previous year and whether that had 
resulted in a backlog reduction.
---------------------------------------------------------------------------
    \14\ Department of Justice, The Freedom of Information Act, 
Attorney General Memorandum (Mar. 19, 2009).
---------------------------------------------------------------------------
    In June 2018, we reported that DHS received about 191,000 to about 
326,000 requests per year--the most requests of any agency--for a total 
of 1,320,283 FOIA requests in fiscal years 2012 through 2016. Further, 
the Department had a backlog ranging from 28,553 in fiscal year 2012 to 
53,971 in fiscal year 2018. The total numbers of these requests and 
backlogs are shown in table 1.

TABLE 1.--FREEDOM OF INFORMATION ACT REQUESTS AND BACKLOGS FOR THE DEPARTMENT OF HOMELAND SECURITY, FISCAL YEARS
                                                    2012-2018
----------------------------------------------------------------------------------------------------------------
   Number of FOIA Requests DHS Received/
                  Backlog                     2012      2013      2014      2015      2016      2017      2018
----------------------------------------------------------------------------------------------------------------
Requests..................................   190,589   231,534   291,242   281,138   325,780   366,036   395,751
Backlog                                       28,553    51,761   103,480    35,374    46,788    44,117    53,971
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of Department of Homeland Security data./GAO-20-209T.

    We also reported that DHS, in its chief FOIA officer reports from 
fiscal years 2012 to 2016, stated that it had implemented several 
methods to reduce backlogs. According to the reports, the DHS Privacy 
Office, which is responsible for oversight of the Department's FOIA 
program, worked with components to help address the backlogs. The 
reports noted that the Privacy Office sent monthly emails to component 
FOIA officers on FOIA backlog statistics, convened management meetings, 
conducted oversight, and reviewed workloads. Leadership met weekly to 
discuss the oldest pending requests, appeals, and consultations, and 
determined steps needed to process those requests.
    In addition, in 2018, we noted that several other DHS components 
reported implementing actions to reduce backlogs. CBP hired and trained 
additional staff, encouraged requesters to file requests on-line, 
established productivity goals, updated guidance, and used better 
technology. USCIS, the National Protection and Programs Directorate, 
and ICE increased staffing or developed methods to better forecast 
future workloads to ensure adequate staffing.\15\ ICE also implemented 
a commercial off-the-shelf web application, awarded a multimillion-
dollar contract for backlog reduction, and detailed employees from 
various other offices to assist in the backlog reduction effort. Due to 
these efforts by the Privacy Office and other components, the backlog 
dropped 66 percent in fiscal year 2015, decreasing to 35,374 requests.
---------------------------------------------------------------------------
    \15\ The National Protection and Programs Directorate is now known 
as the Cybersecurity and Infrastructure Security Agency.
---------------------------------------------------------------------------
    Yet, despite the continued efforts, the backlog numbers increased 
again. According to the 2018 chief FOIA officer's report, the 
Department ended 2018 with a backlog of 53,971 requests. DHS attributed 
these increases to several factors, including an increase in the number 
of requests received, the increased complexity and volume of responsive 
records for those requests, and the loss of staff needed to process the 
requests.
    In June 2018, we reported that one reason DHS was struggling to 
consistently reduce its backlogs is that it lacked documented, 
comprehensive plans that would provide a more reliable, sustainable 
approach to addressing backlogs. In particular, it did not have 
documented plans that described how it intended to implement best 
practices for reducing backlogs over time. These best practices, as 
identified by Justice's OIP, included specifying how DHS would use 
metrics to assess the effectiveness of backlog reduction efforts and 
ensuring that senior leadership supports backlog reduction efforts.
    In our June 2018 report, we recommended that the Department take 
steps to develop and document a plan that fully addresses best 
practices with regard to the reduction of backlogged FOIA requests. In 
response, DHS reported that it had initiated a Department-wide 
compliance assessment and stated that it planned to use the results of 
the assessment to help guide it in identifying best practices and areas 
of improvement. As of this month (October 2019), the Department stated 
that the draft plan is currently with the components for review and is 
pending clearance.
    Until it has a final plan that fully addresses best practices, DHS 
will likely continue to struggle to reduce its backlogs to a manageable 
level. This is particularly important, as the number and complexity of 
requests will likely increase over time.
  duplication exists in certain components' processing of immigration 
                                 files
    Among the most frequent FOIA requests made to DHS are those for 
immigration files. These files usually contain various types of 
information pertaining to immigrants, including asylum applications, 
law enforcement records, and border crossing documents. As such, they 
may contain information and records that are generated by various DHS 
components or other agencies.
    In 2014, we reported that within DHS, 3 components--USCIS, CBP, and 
ICE--created most of the documents included in immigration files. USCIS 
was the custodian of the files, and all FOIA requests for such files 
were either initiated with, or referred to, USCIS for processing. 
Specifically, to process a FOIA request for an immigration file, the 
USCIS staff to whom the request was assigned first manually entered the 
requester's data, such as a name and address, into USCIS's FOIA system 
to establish a record of the request. Next, the staff retrieved and 
scanned the documents in the requested file and reviewed the documents. 
If all of the documents were generated by USCIS, the staff made 
redactions as needed, sent the documents to the requester, and closed 
out the request.
    Further, if the FOIA request covered files containing documents 
generated by CBP, then USCIS was able to process the request on the 
basis of an agreement to that effect with CBP. By having USCIS process 
such requests for CBP documents, the two components avoided duplication 
in their response to a FOIA request.
    In November 2014, however, we reported that USCIS and ICE did not 
have such an agreement for documents generated by ICE. Thus, the USCIS 
staff was to identify any such documents and make them available to 
ICE's FOIA staff for their separate processing.\16\ In doing so, we 
noted that USCIS and ICE engaged in duplicative processing of FOIA 
requests for those immigration files containing documents related to 
law enforcement activities that were generated by ICE.\17\
---------------------------------------------------------------------------
    \16\ Where applicable, USCIS also refers the immigration file 
documents to other agencies, such as the Department of State or Federal 
Bureau of Investigation, for further processing.
    \17\ These files, which mostly consist of paper documents, contain 
information regarding an individual's contacts with the U.S. 
immigration and inspection process--for example, naturalization 
certificates, records of border crossings, and reports of arrests or 
investigations.
---------------------------------------------------------------------------
    Specifically, to facilitate ICE's review of such files, USCIS staff 
transferred copies of the ICE-generated documents to a temporary 
electronic storage drive maintained by USCIS. ICE retrieved the 
documents, and the ICE staff then re-entered the data to create a new 
FOIA request in ICE's FOIA processing system. The staff then proceeded 
with processing the requested documents, and released them to the 
requester--in essence, undertaking a new, and duplicate, effort to 
respond to the FOIA request. Figure 1 depicts the duplication that 
occurred in USCIS's and ICE's downloading and re-entering of data to 
respond to FOIA requests for immigration files.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    We noted that, up until April 2012, USCIS and ICE had an agreement 
whereby USCIS processed ICE's documents contained in an immigration 
file. However, the components' officials stated that, since that 
agreement ended, the components had not made plans to enter into 
another such agreement. According to ICE's FOIA Officer, USCIS's 
processing of ICE's documents in immigration files was viewed as being 
too costly. Nonetheless, while there would be costs associated with 
USCIS processing ICE's documents in immigration files, the potential 
existed for additional costs to be incurred in the continued duplicate 
processing of such files.
    Our work \18\ has noted that duplication exists when 2 or more 
agencies or programs are engaged in the same activities or provide the 
same services to the same beneficiaries. We concluded that the 
duplicate processing of a single FOIA request by USCIS and ICE staff 
contributed to an increase in the time needed to respond to a FOIA 
request for immigration files. Because USCIS did not send the 
immigration file to ICE until it had completed its own processing of 
the relevant documents--which, according to USCIS, took on average 20 
working days--ICE usually did not receive the file to begin its own 
processing until the 20-day time frame for responding to a request had 
passed.\19\
---------------------------------------------------------------------------
    \18\ GAO, 2013 Annual Report: Actions Needed to Reduce 
Fragmentation, Overlap, and Duplication and Achieve Other Financial 
Benefits, GAO-13-279SP, (Washington, DC: April 2013); Opportunities to 
Reduce Potential Duplication in Government Programs, Save Tax Dollars, 
and Enhance Revenue, GAO-11-318SP, (Washington, DC: March 2011).
    \19\ The average time for USCIS to close a request as of fiscal 
year 2013 was 19.73 days, while the average time for ICE to close a 
request was 52.79 days.
---------------------------------------------------------------------------
    We pointed out that re-establishing an agreement that allows USCIS 
to process ICE-generated documents included in requests for immigration 
files, to the extent that the benefits of doing so would exceed the 
cost, could enable the 2 components to eliminate duplication in their 
processes for responding to such a request. Further, it could help 
reduce the time needed by these components in responding to a request. 
Therefore, in November 2014, we recommended that DHS direct the chief 
FOIA officer to determine the viability of re-establishing the service-
level agreement between USCIS and ICE to eliminate duplication in the 
processing of immigration files. We stressed that, if the benefits of 
doing so would exceed the costs, DHS should re-establish the agreement. 
We also reported on our finding and recommendation regarding duplicate 
processing in our reports and updates on fragmentation, overlap, and 
duplication, issued in 2015 through 2019.\20\
---------------------------------------------------------------------------
    \20\ GAO, 2015 Annual Report: Additional Opportunities to Reduce 
Fragmentation, Overlap, and Duplication and Achieve Other Financial 
Benefits, GAO-15-404SP. (Washington, DC: Apr 14, 2015). Information on 
the current status of GAO recommendations regarding Government 
duplication can be found at: https://www.gao.gov/duplication/overview.
---------------------------------------------------------------------------
    In response, DHS indicated that it was working on a system intended 
to address the duplication. Specifically, in August 2018, DHS's Privacy 
Office director of correspondence/executive secretary stated that the 
Privacy Office was leading a working group in collaboration with the 
Office of the Chief Information Officer to develop requirements for a 
single information technology solution for processing incoming FOIA 
requests. The director added that DHS used 3 disparate systems to 
track, manage, and process FOIA requests and that moving USCIS and ICE 
to one processing solution should result in processing benefits and 
lower overall administrative costs. We have continued to track DHS's 
progress in implementing this recommendation. However, as of October 
2019, DHS's Privacy Office stated that these actions were still in 
progress.
    In conclusion, DHS has implemented a number of key FOIA practices. 
However, it does not have a comprehensive plan to address its FOIA 
backlog, nor has it yet addressed duplication in its FOIA process. 
Addressing both of these issues is important, as the number and 
complexity of requests will likely increase over time and DHS may be 
challenged in effectively responding to the needs of requesters and the 
public.
    Chairwoman Torres Small, Ranking Member Crenshaw, and Members of 
the subcommittee, this completes my prepared statement. I would be 
pleased to respond to any questions that you may have.

    Ms. Torres Small. I thank all of the witnesses for their 
testimony.
    I will remind each Member that he or she will have 5 
minutes to question the panel, and I will now recognize myself 
for questions.
    Dr. Holzer, the Department's overall FOIA caseload has 
tripled since 2010. What is driving this huge uptick in recent 
record requests?
    Mr. Holzer. Yes, thank you. So it is hard to tell where 
exactly the increase is at, but the substantial--I mean, as the 
other witnesses have already stated, the substantial increase 
is for records where people are seeking immigration-related 
records for themselves.
    Ms. Torres Small. Thanks. I understand that the Privacy 
Office at DHS headquarters has had to shift staff and resources 
to the FOIA side of the house to manage the increase in FOIA 
operations. What impact is this having on the other important 
functions the Privacy Office carries out, such as responding to 
data breaches?
    Mr. Holzer. Right. So I am not necessarily certain that 
there has been a shifting of resources, as far as people. 
Definitely in the budget. It is clear that the office has both 
the responsibility for the privacy function, as well as the 
FOIA function. What is not always clear to us is necessarily 
Congressional intent on how those resources should be 
apportioned.
    But over the last 3 years, between the chief privacy 
officer and the two deputies, we have ensured that we are able 
to meet both missions.
    Ms. Torres Small. Thank you. Dr. Holzer, in your opening 
statement you referenced OGIS's recommendations that the 
Department's chief FOIA officer issue guidance or corrective 
actions to bring component FOIA offices into compliance with 
open records law and DHS policy. OGIS further recommended that, 
when warranted, issues of non-compliance should be raised to 
higher levels, including the Secretary's office. What steps has 
your office taken to address this recommendation, and what has 
the response been from the component FOIA offices?
    Mr. Holzer. So we regularly report to component leadership, 
as well as the executive leadership responsible at the 
component level when the offices are not meeting our 
performance metrics, or when there is a specific concern that 
we might have.
    I have also met with the Deputy Secretary when she came on 
board, and had discussions about the program, as well.
    Issues of non-compliance, I think we really haven't had 
anything really egregious, to be honest, where I would need to 
raise those issues, except for the fact that we have--we 
struggle with a backlog. But there has not been any real non-
compliance that has been brought to my attention that would 
need me to go to the Secretary.
    Ms. Torres Small. OK, so you haven't reported any non-
compliance to the Secretary?
    Mr. Holzer. No. We do report regularly to the Secretary, 
and informing whoever that may be the current status of 
operations issues that we may have faced throughout the year, 
as well as any issues that we may be forecasting.
    Ms. Torres Small. Do you have the authority you need to 
issue binding guidance and instruction to component FOIA 
offices?
    Mr. Holzer. On the issue of that, I think that it is more 
of a challenge, but we do use the management and director 
process that is in place in the Department, whereby we are able 
to issue both directives and guidance and policy for the 
components to follow.
    Ms. Torres Small. Could you use clearer instruction?
    Mr. Holzer. I think that there could be clearer authorities 
that would allow us to ensure what the proper lanes are, not 
only for our office, but also where the components might 
reside.
    Ms. Torres Small. Thank you.
    For Ms. Meckley and Ms. Semo, would either of you care to 
respond on what more can be done to improve coordination and 
cohesion throughout the Department?
    Ms. Meckley. So I know USCIS's FOIA team, we have regular 
and often, you know, engagement with the Department. Each 
component does have vastly different lines of business, and 
those lines of business do drive how we execute our FOIA 
program day to day.
    For us, the concentration has been, you know, focusing on a 
technical solution that not only met yesterday's needs, but 
today's needs and tomorrow's needs. We are in that position 
now. We are poised to share information about FIRST with other 
DHS components. I think that solution is one that is scalable. 
That is one that could be viewed as an enterprise solution. 
So----
    Ms. Torres Small. Ms. Meckley, I apologize. I just want to 
get one more question in before I run out.
    Ms. Meckley. Sure.
    Ms. Torres Small. So I wanted to talk of the USCIS and ICE 
agreement, or lack of agreement. Why has there not been an 
agreement signed?
    Ms. Meckley. So, again, I think this is where, you know, my 
colleague from DHS mentioned, you know, we all have equities in 
how we process FOIA requests within each of the DHS components. 
Again, vastly different based on the lines of business.
    Now, you know, where we stand today, I feel like, you know, 
USCIS is in a position in poise. We have, you know, 244 very 
technical, very competent, highly-trained FOIA processors. At 
the appropriate time, if ICE, you know, wishes to have us, you 
know, process any ICE documents that are in immigration 
records, we are happy to do that. We are ready to do that.
    Ms. Torres Small. Thank you. The--I now recognize the 
Ranking Member of the subcommittee, the gentleman from Texas, 
Mr. Crenshaw, for questions.
    Mr. Crenshaw. Thank you, Madam Chairwoman.
    Dr. Holzer, I will start with you. I want to talk about the 
FOIA Improvement Act of 2016. It requires DoJ to develop a 
FOIA.gov, and agencies to submit plans in 2019 for 
interoperability with FOIA.gov by 2023. Has DHS developed a 
plan for interoperability? Will we be able to meet that 2023 
deadline?
    Mr. Holzer. Yes, we have, and we have submitted that to 
DOJ, as well.
    Mr. Crenshaw. OK. Mr. D'Souza, would GAO deal with that at 
all? Do you guys look at the general progress toward meeting 
the deadline of 2023 across the whole Federal Government?
    Mr. D'Souza. So we--as, you know, Ranking Member, we do our 
work at the direction of Congress. We actually have received a 
request to update our prior work on FOIA. So I would imagine, 
as part of that, we will probably look at on-going efforts in 
this area.
    Mr. Crenshaw. OK. So DHS is on track. We are not sure where 
the rest of the Federal Government is.
    I have heard from others that we are struggling to meet a 
2023 deadline, which is kind of unbelievable. That--is that--
have you heard the same? It looked like you wanted to say 
something.
    Mr. Holzer. Well, I was just going to say, so at the 
Department we are going to do a phased approach. So some 
components will come on-board before others. We expect the 
first portion of those components to come on-board by the end 
of this fiscal year, and then the other components will come 
on-board by the end of the deadline.
    Mr. Crenshaw. OK, I had a similar question to the 
Chairwoman's about the lack of agreement between USCIS and ICE. 
Ms. Meckley, you have already given your answer to that.
    Dr. Holzer, do you have anything to add?
    Mr. Holzer. Yes, well, what I would say is I think that the 
components are uniquely qualified to determine how their 
information is handled when they are in other people's records, 
whether it is in A-file, or whether they are different 
components.
    I will also point out that the second part of the 
recommendation was that, when it was at a cost or cost savings 
to the Government, and I don't believe that that has been 
established, that there would be a significant cost savings to 
ICE. So, if we were to transfer resources from ICE to pay for 
CIS to process those records, it could actually impact further 
operations at ICE.
    Mr. Crenshaw. OK. Ms. Meckley, this question is for you.
    Dr. Holzer, if you have anything to add to it, please do.
    But I frequently hear from individuals that were denied 
applications for special immigrant visas. So what I am thinking 
of in this case is the interpreters that I worked with in Iraq 
and Afghanistan looking for visas, and they often cite missing 
or incomplete documents in response to their FOIA requests for 
information on those cases.
    Can you explain the process for compiling the information 
to respond to these requests, and what issues USCIS might face 
in fulfilling those kind of FOIA requests?
    Ms. Meckley. Sure. So the immigration records, the A-files 
themselves, are contained in individual files. So when a 
request comes in for a file, we do, you know, essentially 
digitize or scan that entire paper record into the FOIA 
processing system.
    So everything that the Government has, everything that 
USCIS has that is contained in that file, is processed, page by 
page, line by line, by our, you know, highly-skilled FOIA 
processors. That information, if, you know, redactions are 
applied, consistent with the exemptions, the applicable 
exemptions, and then whatever is not exempt is released back to 
the requester.
    Mr. Crenshaw. OK. Is there any--do you have any 
recommendations on how to make that faster for--I think what 
people are complaining about is what they get back--it is 
unclear why they didn't get something back, or the documents 
they are receiving are incomplete.
    Ms. Meckley. Sure. As I mentioned in my opening statement, 
we have received 200,283 requests. Around 99 percent of those 
requests are for immigration records. So the vast majority of 
the population for immigration records. Currently, our average 
processing times for those records are 45 days.
    So again, you know, going from at the beginning of fiscal 
year 2019, we had a 41,000-case backlog. We ended the year just 
over 17,000. So a lot of that is attributed to our new FOIA 
processing system. I do expect our processing times to continue 
to decrease, but over 2019, just about every one of our 
processing lines, the times did decrease, and we are committed 
to continuing that trajectory.
    Mr. Crenshaw. OK. You mentioned the FIRST program is 
scalable to other components. Are there any plans to do just 
that?
    Ms. Meckley. So the way we--you know, when I talked to the 
DHS CIO about this, you know, this was more of a vision. We 
were developing requirements and capabilities, and we used the 
agile methodology to deliver that capability. So my ask was, 
let us deploy this solution. Let us focus on the core 
functionality, let us deploy the solution.
    Once we essentially got it right, then we could expose--we 
did this in a--on a cloud-based architecture. It is stored in 
the Amazon Web Services Cloud, and it is open source code. So 
if any DHS component or Government agency wants us to expose 
that code and allow them to use that, we are ready to have 
those technical conversations.
    Mr. Crenshaw. Thank you.
    Ms. Meckley. You are welcome.
    Mr. Crenshaw. I yield back.
    Ms. Torres Small. Thank you. I apologize. The Chair will 
now recognize other Members for questions they may wish to ask 
the witnesses.
    In accordance with our committee rules, I will recognize 
Members who are present at the start of the hearing, based on 
seniority on the subcommittee, alternating between Majority and 
Minority. Those Members coming in later will be recognized in 
order of their arrival.
    The Chair recognizes for 5 minutes the gentlewoman from 
Nevada, Ms. Titus.
    Ms. Titus. Thank you. Thank you very much. Before I ask 
questions about FOIA, I just wondered if--does anybody know who 
is in charge over there at DHS, and who is really making 
policy, who you all report to on any of the success of these 
programs, or who is going to be there tomorrow, or anything 
like that?
    That is OK, you don't have to answer that question. But you 
get the point.
    I want to follow up with some of the questions that were 
just asked about the A-files. I hear a lot about this in my 
district, too, from immigrants and attorneys, or the 
organizations that are trying to help them with the paperwork. 
Because it takes so long, often times they may lose a job, or 
they may even risk being deported. I understand that this new 
computer system may try to make that work faster.
    But have you considered just taking those A-files out from 
under FOIA, so you lessen your work, and also speed up that 
process for people who need this information on themselves?
    Ms. Meckley. Sure. So, regardless of whether we do the A-
file processing under FOIA or some other system, there are a 
lot of sensitive documents that are contained in immigration 
records, in immigration files. So we do have to be very 
careful.
    A lot of times we find third-agency information that has to 
be referred to the Department of State or the FBI or, you know, 
the appropriate owner of that information. So it is very 
complex. There are a lot of sensitive documents in those files.
    However, with FIRST, the new, scalable, digital, end-to-end 
FOIA processing system, you know, we are encouraging people to 
file requests on-line. Create an account, file on-line. That 
eliminates a lot of the upfront sending us paper, receiving 
paper, data entry, and to also, you know, opt into receiving 
the response electronically. Today, for the vast majority of 
requests, we are still burning content to CDs. We want to get 
out of that business. So the more people sign up, file 
electronically, and opt to receive the response electronically, 
you are cutting time off the process right there.
    Ms. Titus. What kind of outreach have you all done to let 
people know about this new system and how to use it?
    Were any of those people at the table when you designed it?
    Ms. Meckley. They were, as a matter of fact. We had a lot 
of our requesters at the table. I held a stakeholder engagement 
call where, I think, we had over 300 participants, and we 
actually showed them a video of FIRST, and how to file on-line, 
how to create an account. So we had a very robust stakeholder 
engagement call to strongly encourage people to use that FOIA 
system. If you are going to file a FOIA request, it is far more 
efficient and far more streamlined to file on-line. That allows 
us to take advantage of a lot of the automated workflow that we 
developed.
    Ms. Titus. Would you be willing to work with some of our 
district staff, come out to the district, try to meet with some 
people at the local level to get this information out further?
    Ms. Meckley. I am a huge proponent of talking about how 
successful this has been. I love doing that. I would be more 
than happy to.
    Ms. Titus. You would come to Las Vegas?
    Ms. Meckley. I would come wherever you would like me to go.
    [Laughter.]
    Ms. Titus. I usually get a yes to that question.
    Ms. Meckley. Yes, ma'am.
    [Laughter.]
    Ms. Titus. Also, the fees. Know that--I think maybe the 
lowest fee is $25, but that can be a lot to somebody who 
doesn't have much, that is just trying to get their papers. Do 
you have a sliding scale, or any way to maybe consider a waiver 
of that fee?
    Ms. Meckley. USCIS is not currently charging fees for FOIA 
requests.
    Ms. Titus. Oh, OK, well, that is good to hear. One other 
quick question. I know that Interior has done this, and I think 
the EPA has done this: Allow political appointees to weigh in 
on whether information should be released through the FOIA 
process. Does DHS have any plans to move in that direction?
    Mr. Holzer. So at the Department I am ultimately the 
deciding official.
    Ms. Titus. OK. So you are not planning on moving to let 
other people weigh in on whether some information ought to be 
released or not?
    Mr. Holzer. So we consult with offices that have equity in 
the record, where they can make recommendations. So, obviously, 
that may span a whole host of different people. But at the end 
of the day, the ultimate determination on whether or not a 
record is releasable falls to the chief FOIA officer of the 
Department, who has delegated that ultimate responsibility on a 
day-to-day basis to me.
    Ms. Titus. Have you had any requests like that? Or what 
would be an example of somebody who might want to intervene?
    Mr. Holzer. I don't--we have not had a request like that in 
the last 3 years since I have been back. We do consult with 
folks, various offices, just as we normally would with any 
other record.
    Ms. Titus. OK. Well, thank you. I yield back.
    Ms. Torres Small. Thank you, Ms. Titus. The Chair 
recognizes for 5 minutes the gentleman from Louisiana, Mr. 
Higgins.
    Mr. Higgins. Thank you, Madam Chair. Dr. Holzer, regarding 
the automated requests, the automatic response to requests, 
there has been recommendations made to the agency. Is there 
any--have you made any progress there? How would that manifest 
itself exactly?
    Mr. Holzer. I am sorry. The automatic----
    Mr. Higgins. The status to efforts to automate requests.
    Mr. Holzer. So to automate the requests?
    Mr. Higgins. If you have, like, a repetitive request, the 
same request, you have already filled that data----
    Mr. Holzer. Right. So if we had a request for a similar 
record, we would post that on-line, as long as it wasn't a 
first-party type of request.
    As far as the automation at the Department, we stood up a 
single enterprise-wide solution at headquarters. As I 
mentioned, 6 of the 9 operational components are on that 
solution, which is used to both process and to track FOIA 
requests in the Department.
    Mr. Higgins. OK, that--your answer brings me to, I think, a 
more central question that I have. In this age, where we are 
dealing with incredible increases in digital communications, 
social media, et cetera, fake profiles, the weaponization of 
the digital theater of engagement, shall we say, have you seen 
or do you track a systematic and repetitive FOIA request?
    Has there been chatter within the agency, within the 
Department that would indicate some effort to actually 
undermine the services that DHS provides to our Nation by 
having a dedicated--you say you have 600 dedicated staff 
members?
    Mr. Holzer. Right. So I think that this is definitely a 
concern----
    Mr. Higgins. You do have 600 dedicated staff members?
    Mr. Holzer. We do, across the Department.
    Mr. Higgins. OK, so that is a lot of men and women 
dedicated for FOIA requests.
    Mr. Holzer. Absolutely.
    Mr. Higgins. So my question is are you seeing a pattern 
that would be indicative of some effort from our citizenry that 
is less than genuine regarding requests for information?
    Mr. Holzer. No, sir, we don't--I have not seen a pattern of 
that. But it is also not something that is really tracked. We 
don't have the technology currently within the FOIA enterprise 
to kind of see what kind of information is going out. It is 
something that I think that is one of the requirements for a 
future solution that we are looking at using artificial 
intelligence to kind-of scan----
    Mr. Higgins. If you are not measuring the type of requests 
and the specifics of the requests that you are receiving, then 
how could you automate your responses?
    Mr. Holzer. Well, I think when we are talking about the 
automation of responses, what we are more looking at is being 
able to respond to the public in a more seamless electronic 
manner, not necessarily where they would just type in, you 
know, a FOIA request. We are not going to be Google for FOIA, 
where they type in the key word and all of a sudden they are 
going to get, you know, information spit out to them. They are 
still going to have to make a request to the agency.
    What we want to do is make it easier for the public to make 
those types of requests to us, and we want to make it easier, 
as my colleague from CIS said, for the requester to download 
that information and have access to it.
    The information that we are releasing sheds light on 
operation of the Government.
    I think that we are concerned about kind-of what you are 
alluding to. I think, with the mosaic theory, you know, like if 
we release this information here and release this information 
over here, that adversaries could put that together. But again, 
as you pointed out, we have 600 qualified, dedicated staff that 
do this every single day that ensure that we are protecting the 
homeland.
    Mr. Higgins. It occurs to some of us that that is a 
tremendous amount of expense to be dedicated for Freedom of 
Information requests.
    Although we certainly support the American people's right 
to have access to this information that is not Classified, we 
are also concerned about the efficiency of DHS and how this 
could potentially be impacted in the--I mean the reality of the 
world today is that our offices receive automated responses, 
emails all the time. If you touch a hot button, you are going 
to get those emails and those phone calls. They are coming, and 
they disrupt our offices' ability to perform. It is a less than 
genuine outreach when you get the exact same message from 800 
different people across the country.
    So I am just wondering how this has impacted DHS's 
efficiency. Perhaps it is something to consider for another 
day. Madam Chair, I yield.
    Ms. Torres Small. Thank you, Mr. Higgins.
    I am going to do another round. I may be the only one who 
does another round, so I just thank my colleagues, as they are 
departing, unless they want to stay. I just wanted to do a 
quick follow-up on a few quick--a few questions.
    The first--I have got to return to the A-file and the 
letter. So I know CBP and USCIS do have an agreement for USCIS 
to do the full FOIA request. Mr. D'Souza, I appreciate your 
note in your opening remarks that this is--the lack of one with 
ICE and USCIS has caused unnecessary delays and duplication.
    Dr. Holzer, I recognize your point and concern that, if you 
are going to make this change, it should be something that 
saves the agency money. I did note that in the past you have 
acknowledged that the lack of cooperation between USCIS and DHS 
has been a barrier to a more efficient FOIA processing. I just 
wanted to see if you could spend a little more time addressing 
that.
    Mr. Holzer. Well, so one thing I would also like to point 
out, if I could just go back a little bit on this, is that that 
recommendation is fairly old. So the FOIA infrastructure in the 
Department has changed somewhat.
    So, when we had those memorandums of agreements between the 
components, it was almost necessary, because the components 
were not able to utilize the technology that we had in place. 
As I said, we weren't able to shift the records around the 
Department.
    I don't think that is the case anymore. I think that the 
technology that we currently have in place will allow the 
record sets to be transferred. I would assume that, with 
solutions such as FIRST, that we could grant access to other 
components to be able to process those records within that 
solution. If not, then I think that we could work with our 
colleagues to continue to look at how we can utilize 
technology.
    But again, my big concern is that I do not want to take 
resources that are limited at ICE and have them shifted over to 
CIS to find a solution that they are not really interested in 
participating in.
    Ms. Torres Small. OK. So are you saying that, if you can 
achieve through technology simultaneous processing, then that 
is--that could work? But if you cannot, a letter might be 
valid?
    Mr. Holzer. Well, again, I think that the components are 
best situated to make those determinations. I mean, I think 
that while CIS does have other agreements with other 
organizations like CBP--even my office, we have an agreement 
with them to process some of our records within the A-file.
    But again, the component is best situated to determine how 
their equity is handled, and also what is the best use of their 
resources.
    Ms. Torres Small. Don't you have a role, too, in terms of 
making sure that the components are working well together?
    Mr. Holzer. Oh, absolutely. I think that we have played a 
vital role in having those discussions over the years. The 
information has been provided to me, as far as the amount of 
cost savings that might be garnered, which is not--in my 
opinion, it actually would cost ICE more money to enter into 
such an arrangement. That is really where my concern lies. In 
discussions with the ICE staff is that it actually would cost 
more money to have CIS process those records than it would for 
them to do it themselves, but also that they don't have the 
same skill set to make sure that their information is being 
protected.
    Ms. Torres Small. Can you supply the information that 
indicates that it would cost more money for ICE to be 
processing that?
    Mr. Holzer. I can get that back to you, yes.
    Ms. Torres Small. Thank you so much. So is that a change of 
opinion from earlier this year, when you noted that the--it 
created--the lack of a letter or memorandum of agreement 
created barriers to more efficient cooperation?
    Mr. Holzer. No, I think those are two issues. Is it more 
efficient to have CIS process the records in the A-file? 
Absolutely. It is more efficient, because you have one 
processor who has the A-file in front of them. They can redact 
the information as they are going through it, rather than 
taking the A-file and transferring it over to ICE.
    There is inefficiencies there, absolutely. But at what 
cost? I think that is part of the question, right? It is part 
of the equation.
    In addition to that I think that ICE has made it pretty 
clear that they want to ensure that their information is being 
protected as they have determined that it should be.
    Ms. Torres Small. OK. Thank you. I look forward to 
reviewing the cost estimate concerning that. Thank you.
    I also wanted to make a quick question about the OSGIS 
recommended that USCIS weigh the costs and benefits of 
producing machine-readable versions of the A-files, which would 
enable FOIA processors to use computer-assisted review tools, 
such as text recognition software. Ms. Meckley, could you 
comment on that, and if you have made any efforts to include 
that?
    Ms. Meckley. Sure. So, you know, just alone at the National 
Record Center, we have over 20 million paper A-files. Those 
paper A-files are approximately 250 pages each. So they are 
very voluminous. Those A-files and the content in those A-files 
only continues to grow over the years.
    However, when we do receive a request for an immigration 
record, an A-file, we do scan that into the system so the FOIA 
processors can apply the necessary FOIA exemptions and 
redactions. So it is a scanned image.
    You know, our concentration, as I mentioned, was developing 
a end-to-end, fully digital FOIA solution that would allow us 
to automate a lot of the processes and work for our FOIA 
processors so we are more proficient. So we--and like I said, 
we have increased productivity by almost 50 percent. So we 
really focused on kind-of using the agile methodology, deliver 
core functionality first. That is what we are doing, is getting 
that core functionality built, developed, tested, and deployed.
    Then we can start looking things like AI. Is this 
capability that would continue to streamline and make the FOIA 
process more efficient? So there is definitely an opportunity 
here for us to continue to enhance, going forward.
    Ms. Torres Small. Thank you, Ms. Meckley.
    So we do have time, if you would like, Mr. Taylor, to--no 
more?
    OK. I will recognize myself for one more question, unless 
you want to. No? OK.
    Ms. Meckley, would you just weigh in briefly in terms of 
the MOU, and USCIS's interest or ability to review those with 
ICE?
    Ms. Meckley. Sure. As I said, you know, we have 244 highly-
trained, highly-talented FOIA processors that I will put up 
against any Government FOIA processors in the Federal 
Government. I do believe that, you know, now that we have a 
more modern, sophisticated technology that we are using, FIRST, 
we are probably better-positioned to sit and have conversations 
around, you know, efficiency, streamlining costs.
    Our old processing system, yes, there were inherent and 
exorbitant costs associated with that, and more people to do, 
you know, work. Now what we are seeing is we are able to have 
fewer people producing and processing more requests.
    So I do think that it is probably the appropriate time for 
us to sit down and have those conversations. Like I said, the 
infrastructure is such that we can develop some 
interoperability with ICE to where perhaps we could do the 
processing and they could do the reviewing and approving. I 
mean, there is all kinds of ideas around what we could 
potentially do.
    We do have 6 agreements with other Government agencies, so 
we have proven that we are capable of being trained to be able 
to handle those documents. So it is just a matter, again, of 
the, you know, ICE's equities, ICE's interest in doing this. 
But again, we stand ready, capable, able, whenever they are 
willing to come to the table and have that conversation.
    Ms. Torres Small. Thank you, Ms. Meckley.
    I want to thank all of the witnesses for their valuable 
testimony, and to the Members for their questions.
    Before adjourning I ask unanimous consent to submit 2 
statements for the record.
    The first is from Margaret Kwoka, professor of law at the 
Sturm College of Law, University of Denver.
    The second statement is jointly submitted by American 
Oversight, Demand Progress, Electronic Frontier Foundation, 
Government Accountability Project, National Freedom of 
Information Coalition, National Security Archive, Open the 
Government, and the Project on Government Oversight.
    Without objection, so admitted.
    [The information referred to follows:]
 Statement of Margaret B. Kwoka, Professor of Law, University of Denver
                            October 17, 2019
    Thank you for the opportunity to submit a written statement. My 
name is Margaret Kwoka and I am on the faculty at the University of 
Denver Sturm College of Law. I am submitting this statement in my 
individual capacity as a researcher who has devoted many years of work 
to studying open government and FOIA. In 2018, I published a study 
focused on first-person FOIA requests, or requests individuals make for 
records and files about themselves. The study was entitled ``First-
Person FOIA,'' and was published in the Yale Law Journal.\1\ What 
follows is an excerpted and edited portion of that study as it pertains 
to DHS.
---------------------------------------------------------------------------
    \1\ Margaret B. Kwoka, First-Person FOIA, 127 YALE L. J. 2204 
(2018).
---------------------------------------------------------------------------
                        i. foia requests to dhs
    The Department of Homeland Security (DHS) now consistently receives 
the largest volume of requests in the Federal Government by a 
staggering margin: In fiscal year 2018, it received 395,751 requests, 
or 46 percent of the Federal Government's total 863,729 requests.\2\ In 
fiscal year 2015, the year used in my study, DHS received 281,138 of 
the Government's 713,168 requests, or 39 percent.\3\ Within DHS, in 
fiscal year 2015, a full 95 percent of requests were received in just 3 
components, namely the 3 principal immigration enforcement agencies: 
U.S. Immigration and Citizenship Services, Immigration and Customs 
Enforcement, and Customs and Border Protection.\4\ To varying degrees, 
the FOIA logs published for each of these 3 components shed light on 
the nature of these hundreds of thousands of FOIA requests.
---------------------------------------------------------------------------
    \2\ Summary of Annual FOIA Reports for Fiscal Year 2018, U.S. DEP'T 
OF JUSTICE, available at https://www.justice.gov/oip/reports-1.
    \3\ 2015 Freedom of Information Act Report to the Attorney General 
of the United States, U.S. DEP'T OF HOMELAND SEC. 5 (Feb. 2016) 
[hereinafter DHS 2015 FOIA Report], http://www.dhs.gov/sites/default/
files/publications/dhs-foia-annual-report-fy-2015.pdf [http://perma.cc/
5RQE-XK4C]; FOIA Summary 2016, supra note [sic] Error! Bookmark not 
defined., at 2.
    \4\ Id. at 6. USCIS received 150,897, ICE received 101,578, and CBP 
received 77,746, for a total of 330,221 out of DHS's total 348,878 that 
year. Id.
---------------------------------------------------------------------------
    One thing regarding these 3 agencies is clear: Nearly all requests 
received are first-person requests. To begin, DHS's own 
characterization of the dominant force behind its volume of FOIA 
requests is that they are first-person in nature. In its fiscal year 
2015 annual report to DOJ concerning its FOIA activities, DHS explained 
that these components ``receive the bulk of FOIA requests from 
individuals seeking immigration related records.''\5\ DHS's FOIA 
website lists top topics for FOIA requests, the first of which is for 
``Aliens and Asylees'' to request'' [d]ocuments in the Alien File,'' 
which is the file kept by USCIS on each noncitizen.\6\
---------------------------------------------------------------------------
    \5\ DHS, 2015 FOIA REPORT, supra note 3, at ii. To this category of 
the 3 agencies discussed here, DHS added a fourth, the Office of 
Biometric Identity Management, contained within the National Protection 
and Programs Directorate (NPPD). Id The NPPD received 13,781 requests 
in fiscal year 2015. Id at 5.
    \6\ Top FOIA Requests by Topic, U.S. DEP'T HOMELAND SECURITY (June 
13, 2017), http://www.dhs.gov/top-foia-requests-topic [http://perma.cc/
3ZND-S3PW].
---------------------------------------------------------------------------
    The FOIA logs confirm this account. For example, at ICE, out of 
100,762 requests, 98,928 have a redaction for personal privacy in the 
subject-matter field, indicating that a full 98 percent of requests are 
first-person in nature.\7\ Indeed, 88,611 requests have the subject 
matter listed identically: ``records pertaining to (b)(6)(b)(7)(C)'' 
(the two privacy exemptions).\8\ Many other formulations of the same 
statement also appear hundreds of times each, such as ``all records 
pertaining to (b)(6)(b)(7)(C)'' or ``records relating to 
(b)(6)(b)(7)(C).''\9\ Similarly, at USCIS, out of 165,233 total 
requests, 163,050 or 99 percent, have subject matters withheld pursuant 
to the privacy exemptions.\10\
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    \7\ FOIA Library, U.S. IMMIGR. & CUSTOMS ENF'T (Oct. 3, 2017) 
[hereinafter ICE Data], http://www.ice.gov/foia/library [http://
perma.cc/UT5A-2XG9] (follow ``ICE FOIA Logs'' tab). The dataset 
compiled included the months between October 2014 and September 2015, 
representing fiscal year 2015.
    \8\ Id.
    \9\ Id.
    \10\ Electronic Reading Room, U.S. CITIZENSHIP & IMMIGR. SERVS. 
[hereinafter USCIS Data], http://www.uscis.gov/about-us/electronic-
reading-room [http://perma.cc/L9GW-2PK4] (filter by ``FOIA Logs''). The 
dataset compiled includes the months between October 2014 and September 
2015, representing fiscal year 2015.
---------------------------------------------------------------------------
    Interestingly, while U.S. Customs and Border Protection (CBP) is 
the only agency to use the seemingly transparency-promoting FOIA on-
line system in which all requests and responses are publicly 
logged,\11\ 52,402 out of 53,917 requests available in the system for 
fiscal year 2015 have subject matters ``under Agency review.'' 
Nonetheless, the presumptive reason that the subject matters of these 
requests are under review is for a possible (b)(6) or (b)(7)(C) privacy 
redaction, pegging the percentage of first-person requests at CBP at 97 
percent. Also revealing is that lawyers and law firms make up the bulk 
of requesters at these agencies, and numerous law firms are making over 
100 requests per year. At ICE, only 28,684 requests (or 28 percent) 
were made by individuals with no organizational affiliation.\12\ By 
contrast, an astonishing 67 organizations are responsible for more than 
100 requests each. Every one of those organizations appears to be a law 
firm. The single largest requester, Rudolph, Baker & Associates, rings 
in at 871 requests in fiscal year 2015. The next most frequent 
requesters are the Law Office of Manuel E. Solis (691), the Law Office 
of Robert B. Jobe (545), and Immigration Group, LLC (428).\13\ 
Similarly, at CBP, though a far smaller percentage of organizational 
affiliations are available in the data, 10 law firms made more than 100 
requests in fiscal year 2015, including these top 5: Rudolph, Baker & 
Associates (607), Law Office of Manuel E. Solis (406), Coghlan Law 
Office (359), Immigration Group, LLC (328), Law Office of Stephen R. 
Espinoza (174).\14\ At USCIS, the logs do not contain an organizational 
affiliation of the requester, but the same names appear in their top 
requester list: James Rudolph (presumably of Rudolph, Baker & 
Associates) again tops the list at 1,167 requests, Manuel Solis is 
second with 713 requests, followed by Robert Jobe at 586, and Stephen 
Coghlan at 518.\15\ And again, like at ICE, 72 requesters at USCIS are 
responsible for more than 100 requests each in fiscal year 2015.\16\
---------------------------------------------------------------------------
    \11\ FOIA ONLINE [hereinafter CBP Data], http://
foiaonline.regulations.gov [http://perma.cc/67E8-ANA8] (follow 
``Search'' tab, then select ``U.S. Customs and Border Protection''). A 
dataset was compiled covering all available information from October 1, 
2014, to September 30, 2015, representing fiscal year 2015.
    \12\ ICE Data, supra note 7. Despite not coming from law firms, the 
nature of the individual requests appears to be the same. Of those 
requests without an organizational affiliation, 27,632 have a (b)(6) 
designation in the subject matter of the request, indicating that 96 
percent of these requests are first-person. Id.
    \13\ Id.
    \14\ CBP Data, supra note 11.
    \15\ USCIS Data, supra note 10.
    \16\ Id.
---------------------------------------------------------------------------
    These top requesters are all relatively small law firms focusing on 
immigration representation. For example, Rudolph, Baker & Associates 
appears to have only 2 partners and 3 office locations, and bills 
itself in its banner as ``Immigration Lawyers.'' The firm lists its 
first 3 specialties as ``Deportation Defense,'' ``Work and Family 
Visas,'' and ``Citizenship & Naturalization.''\17\ The Law Office of 
Robert B. Jobe lists 12 total attorneys at 1 office location, and all 
of its practice areas focus on immigration.\18\ The Law Office of 
Manuel E. Solis boasts 7 locations (Chicago, Los Angeles, and 5 cities 
in Texas), but still lists only 8 attorneys and describes itself 
primarily as ``helping clients achieve the best possible result in all 
kinds of immigration matters.''\19\ Immigration Group, LLC,\20\ Bay 
Area Immigration,\21\ and the Law Offices of Stephen R. Espinoza \22\ 
are all similar.
---------------------------------------------------------------------------
    \17\ Our Services, RUDOLPH, BAKER & ASSOCIATES (2017), http://
www.rudolphbaker.com [http://perma.cc/2NVV-EUTK].
    \18\ LAW OFF. ROBERT B. JOBE, http://jobelaw.com [http://perma.cc/
G5Q2-2GK9].
    \19\ About the Firm, MANUEL Solis L. FIRM, http://
www.manuelsolis.com/about/?lang=en [http://perma.cc/8TDK-JNEW].
    \20\ IMMIGR. L. GROUP, LLC, http://www.immigration-group.com/
services.html [http://perma.cc/27DL-H833].
    \21\ BAY AREA IMMIGR., http://www.bay-area-immigration.com [http://
perma.cc/TAM5-KGTV]. This firm is also referred to as ``Coughlan Law 
Office.''
    \22\ LAW OFFS. STEVEN R. ESPINOZA, http://srelaw.com [http://
perma.cc/9BNM-YSUA].
---------------------------------------------------------------------------
    To understand why non-citizens and their lawyers are requesting 
records about themselves from USCIS, ICE, and CBP, I interviewed a 
group of immigration attorneys. Four attorneys agreed to participate 
after I contacted several top-requesting law firms. Another 3 attorneys 
that I interviewed are full-time practitioners holding themselves out 
as immigration-law specialists, who submit a more moderate number of 
requests. Among the interviewees were partners (including founding 
partners), senior attorneys, and associates. This approach provided a 
range of perspectives on how immigration lawyers use FOIA to advance 
their clients' interests. They are identified in the citations by 
pseudonyms to protect their privacy.
    The Government has a variety of information on noncitizens, most of 
which is contained in what is described as the ``Alien File'' or ``A-
File.''\23\ This file can include prior visa applications, registration 
with the Government, notes from in-person interviews the client may 
have given with immigration officials, records documenting a prior ICE 
apprehension, and data on entries into and exits from the country.\24\ 
Uniformly, the lawyers with whom I spoke used FOIA to request their 
clients' A-Files or all records about their clients; they sometimes 
also requested records about clients' family members.\25\ This account 
corroborates the indications from the data that first-person requesting 
drives FOIA use at these agencies.
---------------------------------------------------------------------------
    \23\ U.S. Citizenship & Immigration Servs., A-Files Numbered Below 
8 Million, DEP'T HOMELAND SECURITY (Feb. 9, 2016), http://
www.uscis.gov/history-and-genealogy/genealogy/files-numbered-below-8-
million [http://perma.cc/XF4C-2QEV].
    \24\ Geoffrey Heeren, Shattering the One-Way Mirror: Discovery in 
Immigration Court, 79 BROOK. L. REV. 1569, 1604-07 (2014).
    \25\ Telephone Interview with Peggy Brewer, Attorney, Law Firm 3 
(May 19, 2017); Telephone Interview with Robert Blackshear, Attorney, 
Law Firm 2 (Apr. 19, 2017); Telephone Interview with Russell Flores, 
Attorney, Law Firm 1 (Apr. 14, 2017); Telephone Interview with Gloria 
Glen, Attorney, Law Firm 1 (May 1, 2017); Telephone Interview with 
Elizabeth Hilton, Attorney, Law Firm 1 (May 2, 2017).
---------------------------------------------------------------------------
    The lawyers with whom I spoke identified several categories of 
immigration work for which FOIA is an essential tool, removal defense 
first among them. Professor Geoffrey Heeren has documented the utility 
of access to the A-File in representing clients facing possible removal 
(also known as deportation).\26\ A client's prior statements, for 
example, can help a lawyer prepare the client to testify and for cross 
examination that may occur based on any inconsistencies.\27\ Some 
lawyers who represent clients in removal proceedings, which occur in an 
administrative immigration court, said they file a FOIA request as to 
each and every client.\28\ One lawyer explained that the charging 
documents are sometimes wrong and that the individual immigration 
officers often ``don't understand the nuances of individual State 
statutes'' under which a noncitizen might have a previous conviction; 
thus the records received under FOIA are crucial to defending against 
removal.\29\ One lawyer even said that immigration judges typically ask 
him if he filed a FOIA request.\30\
---------------------------------------------------------------------------
    \26\ Heeren, supra note 24, at 1622-24.
    \27\ Id. at 1622.
    \28\ Telephone Interview with Robert Blackshear, supra note 25, 
Telephone Interview with Russell Flores, supra note 25; Telephone 
Interview with Gloria Glen, supra note 25.
    \29\ Telephone Interview with Robert Blackshear, supra note 25.
    \30\ Telephone Interview with Russell Flores, supra note 25.
---------------------------------------------------------------------------
    Clients in removal proceedings are not the only ones for whom 
lawyers avail themselves of FOIA. Other clients may seek some sort of 
affirmative benefit, such as adjustment of status (typically a person 
already present changing from a non-immigrant visa--such as a student 
visa--to an immigrant visa),\31\ an affirmative claim for asylum,\32\ 
or a petition for an immigrant visa from abroad.\33\ In these 
instances, FOIA requests can serve two different purposes.
---------------------------------------------------------------------------
    \31\ Immigration and Nationality Act  245(a), 8 U.S.C.  1255(a) 
(2012).
    \32\ Id.  208, 8 U.S.C.  1158.
    \33\ Id.  203, 204, 8 U.S.C.  1153, 1154.
---------------------------------------------------------------------------
    First, FOIA requests can provide details about the applicant's 
immigration history to ensure consistency in the new application and 
confirm that there are no unexpected problems in their immigration 
history that would prevent the client from obtaining the benefit 
sought. For example, one interviewee explained that if he is 
representing a client who is seeking to change a visa status from one 
non-immigrant visa to another, ``you want to make sure your 
declarations are correct [in that application] and in subsequent visa 
applications[, s]o you need a record of what was submitted . . . 
''.\34\ That same attorney explained that his law firm has a policy not 
to ``submit an [application to become a naturalized citizen] without 
the FBI and FOIA results unless the client signs a waiver'' because of 
the risk that there is some undisclosed or overlooked immigration or 
criminal history that would jeopardize the application.\35\
---------------------------------------------------------------------------
    \34\ Telephone Interview with Robert Blackshear, supra note 25.
    \35\ Id.
---------------------------------------------------------------------------
    Another example occurs when someone who is undocumented and who 
entered the country clandestinely (rather than, say, on a tourist visa) 
wants to apply for permanent residence (i.e., a green card). In this 
situation, the individual is required to leave the United States before 
submitting that application.\36\ Multiple interviewees cited the 
crucial role of FOIA. One said directly that, ``before they leave the 
U.S., we prioritize FOIA.''\37\ Another explained that many clients 
seeking such a visa have had a prior apprehension at or near the border 
in which they were taken back across, but may not be sure what legal 
process was used; for example, it could have been either a voluntary 
return \38\ or an expedited removal.\39\ If the prior encounter 
resulted in an expedited removal, they would be ineligible to seek a 
green card even from outside the United States,\40\ whereas a client 
with a prior voluntary return would still be eligible. Because of the 
severity of the consequences--leaving the country and potentially not 
having a way to return to the United States--``it's very important for 
me to decide whether to put them in the limelight of immigration . . . 
''\41\
---------------------------------------------------------------------------
    \36\ Immigration and Nationality Act  203,204, 8 U.S.C.  1153, 
1154 (2012); see also id.  245, 8 U.S.C.  1255 (allowing persons to 
apply from within the United States if admitted at entry).
    \37\ Telephone Interview with Peggy Brewer, supra note 25.
    \38\ Voluntary Departure, U.S. CITIZENSHIP & IMMIGR. SERVS., http:/
/www.uscis.gov/tools/glossary/voluntary-departure [http://perma.cc/
S8HR-NXSZ) (describing a less formal process that is not enumerated in 
the INA).
    \39\ Immigration and Nationality Act  235(b)(1), 8 U.S.C.  
1225(b) (2012).
    \40\ See id  212(a)(9)(C)(i), 8 U.S.C.  1182(a)(9)(C)(i) (2012) 
(barring permanently from obtaining admission to the United States, 
including on a green card, anyone who has previously been removed after 
being unlawfully present for more than a year).
    \41\ Telephone Interview with Russell Flores, supra note 25.
---------------------------------------------------------------------------
    Second, FOIA requests can be used to obtain documentation the 
client needs to submit with the application but which is no longer in 
their possession. For example, someone who is applying for a green card 
from within the United States must produce proof of lawful entry with 
their application, but they may no longer possess the 
documentation.\42\ Lawyers will use FOIA to get the record from the 
agency to include in the application.\43\ Similarly, a previous family-
based petition that was filed years ago may be needed to support an 
application to adjust status,\44\ and FOIA may be the only way to 
obtain the original petition.\45\
---------------------------------------------------------------------------
    \42\ Official Site for Travelers Visiting the United States: Apply 
for or Retrieve Form I-94, Request Travel History and Check Travel 
Compliance, U.S. CUSTOMS & BORDER PROTECTION (2017), http://
i94.cbp.dhs.gov/I94/#/home [http-://perma.cc/79F4-NXWF).
    \43\ Telephone Interview with Peggy Brewer, supra note 25.
    \44\ I-130, Petition for Alien Relative, U.S. CITIZENSHIP & lMMIGR. 
SERVS., http://www.uscis.gov/i-130 [http://perma.cc/D723-XDRN].
    \45\ Telephone Interview with Peggy Brewer, supra note 25; 
Telephone Interview with John Rivera, Attorney, Law Firm 5 (June 1, 
2017) (explaining that ``a lot of people lose paperwork over the course 
of the 20 years that they're waiting for their petition to become 
current'').
---------------------------------------------------------------------------
    While the public data does not allow for identification of all news 
media requesters, and as such, no aggregate number can be reported, the 
number is necessarily small given the volume of first-person requests. 
A survey of major media outlets that cover immigration matters 
corroborates as much. For example, in the ICE FOIA logs for fiscal year 
2015, the New York Times, the Nation, the Washington Post, the Marshall 
Project (an investigative journalism organization focused on criminal 
justice), Fusion (associated with Univision), Buzz Feed, and 
ProPublica, each made precisely 1 request. The Boston Globe and LA 
Times each made 2. And the Houston Chronicle hit 5 requests that year, 
with Associated Press ringing in at 8. These numbers, of course, are 
miniscule in comparison with the more than 100,000 requests ICE 
received during that time period.
             ii. problems with first-person foia use at dhs
a. FOIA Serves First-Person Requesters Poorly
    A significant amount of first-person FOIA requesting serves as a 
means for private individuals to arm themselves when they are subject 
to Governmental enforcement actions or seek to make their best case for 
a Government benefit. Access to information in these instances, where 
no other mechanism for discovery exists, can promote fairness and 
accuracy in the proceedings. These are vitally important interests to 
the individual and to society as a whole. Even if not formally 
constitutionalized, they represent a due process type of benefit.\46\ 
But the evidence assembled in this study shows that FOIA is serving 
those interests poorly.
---------------------------------------------------------------------------
    \46\ Id at 1138.
---------------------------------------------------------------------------
    To begin, information typically only promotes fairness and accuracy 
insofar as it is timely. The process of requesting records under FOIA 
is not tied to whatever process the agency uses to determine the 
underlying matter, and as previously discussed, responses to FOIA 
requests can take months, sometimes years. Thus, records may not arrive 
in time to be used in the underlying agency process or may delay--
sometimes greatly a person's access to a Government benefit to which 
they are entitled.\47\
---------------------------------------------------------------------------
    \47\ See id.
---------------------------------------------------------------------------
    Indeed, every immigration lawyer interviewed said they had been in 
situations where the response to their FOIA request came too late to 
help in the client's case.\48\ In fact, lawyers representing 
individuals in removal proceedings who are detained pending the 
resolution of their case almost never get a response to their FOIA 
requests before their clients' cases are over, because the cases are on 
an expedited schedule.\49\ One lawyer explained that ``there . . . 
[have] been times where guys have been removed and then a FOIA result 
comes back and my strategy would have been different.''\50\ In fact, 
this lawyer regularly has clients who decide not to fight their removal 
cases because they do not want to wait in detention, even though 
there--may be relief available--but that relief cannot be ascertained 
without the response to the FOIA request.\51\
---------------------------------------------------------------------------
    \48\ Telephone Interview with William Yates, Attorney, Law Firm 4 
(May 24, 2017); Telephone Interview with Peggy Brewer, supra note 25; 
Telephone Interview with Robert Blackshear, supra note 25; Telephone 
Interview with Russell Flores, supra note 25; Telephone Interview with 
Gloria Glen, supra note 25, Telephone Interview with Elizabeth Hilton, 
supra note 25; Telephone Interview with John Rivera, supra note 45.
    \49\ Telephone Interview with Robert Blackshear, supra note 25; 
Telephone Interview with Gloria Glen, supra note 25; Telephone 
Interview with John Rivera, supra note 45; Telephone Interview with 
William Yates, supra note 48.
    \50\ Telephone Interview with Robert Blackshear, supra note 25.
    \51\ Id. One attorney explained how the records that he gets in 
response to a FOIA request would be useful right away for detained 
clients in their bond hearing, because a judge often wants to know if 
there is any possible meritorious defense before deciding if a detainee 
is a flight risk, or because the FOIA response may provide a way to 
dispute the accuracy of the criminal history of the client. Telephone 
Interview with William Yates, supra note 48.
---------------------------------------------------------------------------
    Timing is an issue not only in removal cases, but also for 
noncitizens seeking to adjust their status to become permanent 
residents or to become naturalized citizens. One lawyer cited an 
example where an undocumented client believed she was eligible for a U 
visa, a special visa available for victims of crime, and the client did 
not want to wait for the response to a FOIA request before applying for 
the visa. When the results did come back, it showed that the client had 
previously been deported.\52\ Had the lawyer known, she would have 
asked for a waiver of the consequences of that prior deportation in 
conjunction with the initial visa application.\53\ Another lawyer 
explained that his clients have to remain ``without papers'' just to 
wait for the response to their FOIA request, because the response will 
include documents they need for an application to regularize their 
status.\54\ A third lawyer cited naturalization as an area of 
frustration, because clients want to naturalize as soon as possible and 
do not want to wait for responses to FOIA requests.\55\ The intervening 
time is obviously risky for the clients in any of these situations. In 
fact, a class-action lawsuit was brought to systematically challenge 
CBP's FOIA response times precisely for this reason: ``Individuals and 
attorneys desperately need responses to these FOIA requests. They are 
essential to determining whether a person is eligible to remain in the 
country with family or to apply for a visa to reunite with their family 
. . . ``\56\
---------------------------------------------------------------------------
    \52\ Telephone Interview with Peggy Brewer, supra note 25.
    \53\ Id.
    \54\ Telephone Interview with Russell Flores, supra note 25.
    \55\ Telephone Interview with Robert Blackshear, supra note 25.
    \56\ Groups File Lawsuit Challenging Failures of CBP To Respond to 
FOIA Requests, AM. IMMIGR. COUNCIL (Mar. 13, 2015), http://
www.americanimmigrationcouncil.org/news/groups-file-lawsuit-
challenging-failures-cbp-respond-foia-requests [http://perma.cc/XXM9-
ZSJ8] (quoting Trina Realmuto, litigation director at the National 
Immigration Project of the National Lawyers Guild).
---------------------------------------------------------------------------
    Other aspects of the FOIA process also hinder the full potential of 
information to improve accuracy and fairness, largely because features 
of FOIA processing result in incomplete information. To begin, the FOIA 
process is generally unlikely to result in the release of all 
information that could or should be released. Over-withholding under 
FOIA is pervasive across the Federal Govemment,\57\ and there is no 
reason to believe this context is any different. One lawyer reported 
routinely getting no records in response to requests, only to later 
find out that his clients had previous interactions with immigration 
enforcement, which resulted in their removal from the country.\58\ More 
than one lawyer asserted that their clients' previous statements to 
immigration officials were ``always'' or routinely redacted, making it 
impossible for lawyers to adequately prepare their clients.\59\ One 
lawyer explained that the names of immigration officials who interacted 
with his client are almost always redacted.\60\ He finds this 
frustrating because on the few occasions in which he was able to learn 
the officer's identity, he was able to subpoena the officer about the 
interaction and attempt to impeach him, just like a criminal defendant 
can cross-examine an arresting law enforcement officer.\61\
---------------------------------------------------------------------------
    \57\ These problems are well-documented in administrations of both 
parties. See, e.g., Ted Bridis, Associated Press, Obama Administration 
Sets New Record for Withholding FOIA Requests, PBS (Mar. 18, 2015), 
http://www.pbs.org/newshour/rundown/obama-administration-sets-new-
record-withholding-foia-requests [http://perma.cc/TRF5-H9TB].
    \58\ Telephone Interview with Russell Flores, supra note 25 (``I'd 
say almost half the time I get nothing even though they've [had 
previous contact with] CBP and USCIS.'').
    \59\ Id. (asserting that ``they don't give you the interview''); 
Telephone Interview with Robert Blackshear, supra note 25 (``So how can 
I properly represent them if the only thing I have that they've said 
was now redacted? How do I properly prepare them for a direct and cross 
examination?'').
    \60\ Telephone Interview with William Yates, supra note 48.
    \61\ Id.
---------------------------------------------------------------------------
    Whether or not these particular withholdings are proper under FOIA, 
every lawyer interviewed agreed that it was either never or hardly ever 
worth fighting the denial of information under FOIA by administratively 
appealing or filing a FOIA lawsuit.\62\ The clients or the law firms 
simply didn't have the resources for a collateral proceeding about 
information access.\63\ One lawyer explained that she could not justify 
charging her hourly fee to file and manage FOIA requests, and thus she 
directed clients to manage the process on their own and return when 
they had the results.\64\ Another lawyer lamented, ``In 7 years I've 
never filed an administrative appeal or gone to Federal court on a FOIA 
case . . . [T]here's technically a remedy but the reality is most 
people can't access it because lawyers can't afford to take the time 
and energy to litigate those issues.''\65\ Thus, when information is 
withheld, those withholdings will likely go unchallenged.
---------------------------------------------------------------------------
    \62\ Telephone Interview with Robert Blackshear, supra note 25; 
Telephone Interview with Peggy Brewer, supra note 25; Telephone 
Interview with Russell Flores, supra note 25; Telephone Interview with 
Gloria Glen, supra note 25, Telephone Interview with Elizabeth Hilton, 
supra note 25; Telephone Interview with John Rivera, supra note 45; 
Telephone Interview with William Yates, supra note 48.
    \63\ See Telephone Interview with Robert Blackshear, supra note 25 
(explaining that the firm ``[r]arely'' appeals a FOIA denial because 
``[t]he problem is time and money''); Telephone Interview with Russell 
Flores, supra note 25 (``[M]y clients, quite frankly, can't even pay me 
for an appeal to the FOIA, let alone going to [court].''); [sic] 25 
Telephone Interview with Gloria Glen, supra note 25 (``We haven't 
[appealed a FOIA denial] because A, we don't have the time, and B, I've 
never been paid to do that.''). But see Telephone Interview with 
William Yates, supra note 48 (``We've done some [FOIA appeals], but . . 
. they're not too successful.'').
    \64\ Telephone Interview with Peggy Brewer, supra note 25.
    \65\ Telephone Interview with John Rivera, supra note 45.
---------------------------------------------------------------------------
    Finally, certain subsets of requesters may have limited rights 
under FOIA. For example, the fugitive disentitlement doctrine is an 
equitable doctrine originally crafted to allow courts of appeals to 
dismiss the appeal of someone convicted of a crime so long as that 
person remained a ``fugitive.''\66\ DHS has adopted this doctrine and 
applied it to reject FOIA requests because of its determination that 
the requester is a ``fugitive.'' For example, in fiscal year 2015, ICE 
denied requests based on the fugitive disentitlement doctrine 4,053 
times.\67\ Very few cases address the question of whether such a use is 
appropriate,\68\ but because responses are so seldom challenged, DHS's 
interpretation acts as a practical barrier for a non-trivial number of 
requesters. Moreover, the Privacy Act, by its own terms, applies only 
to ``a citizen of the United States or an alien lawfully admitted for 
permanent residence.''\69\ And the Privacy Act does not allow an 
individual to request information about himself that is contained in 
the file of another individual (such as a relative).\70\ Thus, certain 
groups of individuals have limited access under either or both 
statutes.
---------------------------------------------------------------------------
    \66\ See Ortega-Rodriguez v. United States, 507 U.S. 234, 239-40 
(1993).
    \67\ DHS 2015 FOIA Report, supra note 3, at 7.
    \68\ See Maydak v. U.S. Dep't of Educ., 150 F. App'x 136, 137 (3d 
Cir. 2005) (affirming a decision to dismiss a FOIA complaint under the 
doctrine); Doyle v. U.S. Dep't of Justice, 668 F.2d 1365, 1365 (D.C. 
Cir. 1981) (affirming the dismissal of a FOIA complaint under the 
doctrine), abrogated by Ortega-Rodriguez, 507 U.S. 234; Meddah v. Reno, 
No. 98-1444, 1998 U.S. Dist. LEXIS 23620, at *2 n. I (E.D. Pa. Dec. 8, 
1998) (applying the doctrine to dismiss a FOIA complaint). See 
generally Emily Creighton, The Fugitive Disentitlement Doctrine: FOIA 
and Petitions for Review, AM. IMMIG. COUNCIL (Apr. 29, 2013), http://
www.americanimmigrationcouncil.org/sites/default/files/
practice_advisory/fugitive_disenti- 
tlement_doctrine_foia_and_petitions_for_review_4-29-13_fin.pdf [http://
perma.cc/KX5V-QNQN] (surveying cases applying the doctrine).
    \69\ 5 U.S.C.  552a(a)(2) (2012). Next of kin also cannot make a 
Privacy Act request about a deceased individual. Privacy Act 
Implementation, 40 Fed. Reg. 28,948, 28,951 (July 9, 1975).
    \70\ Warren v. Colvin, 744 FJd 841, 843-44 (2d Cir. 2014).
---------------------------------------------------------------------------
b. First-Person FOIA Requests Create Agency Inefficiencies
    Even from DHS's perspective, many kinds of first-person FOIA are 
likely to present significant inefficiencies. Because immigration 
lawyers have no other way to obtain Government-held information about 
their clients, immigration lawyers file FOIA requests in every case or 
nearly all cases they handle.\71\ In addition, these attorneys 
regularly file FOIA requests at 2, 3, or sometimes more agencies to 
increase their chances of obtaining the relevant information.\72\ 
Immigration-related documents pertaining to their clients could be 
located not only at USCIS, ICE, and CBP, as discussed above, but also 
at DHS's Office of Biometric Identity Management;\73\ the Department of 
Justice's Executive Office for Immigration Review,\74\ which runs the 
administrative immigration courts; the Federal Bureau of 
Investigations,\75\ which houses criminal background information; the 
Department of State,\76\ which processes visas; the Department of 
Labor's Employment and Training Administration,\77\ which issues labor 
certifications required for certain visa applications; and the 
Department of Health and Human Services' Administration for Children 
and Families, which houses the Office of Refugee Resettlement. 
Certainly, not every agency will be implicated in any one case, but 
attorneys routinely file a handful of requests to ensure they have 
uncovered all the relevant documents.
---------------------------------------------------------------------------
    \71\ One lawyer files a FOIA request ``[f]or each client, we file 
one for every client.'' Telephone Interview with Robert Blackshear, 
supra note 25. Another reported filing FOIA requests for ``all 
clients.'' Telephone Interview with Gloria Glen, supra note 25. A third 
said she used FOIA ``[m]ost of the time.'' Telephone Interview with 
Elizabeth Hilton, supra note 25. A fourth said he used FOIA ``70 to 80 
percent of the time.'' Telephone Interview with John Rivera, supra note 
48. Of the interviewees, only Brewer reported much less use of FOIA, 
noting that she files a FOIA request only about 25 percent of the time. 
This difference appears to be attributable to two different factors. 
One is that Brewer does a wider variety of immigration work, including 
business immigration, in which clients have often had less previous 
interaction with immigration authorities. In addition, even among 
family-based petitions, it appears Brewer is more judicious about her 
use of FOIA, only filing a request when she has a reason to believe 
records exist. See Telephone Interview with Peggy Brewer, supra note 
25.
    \72\ For example, Flores said he ``automatically do[es] CBP, and 
USCIS.'' Telephone Interview with Russell Flores, supra note 25; see 
also Telephone Interview with Gloria Glen, supra note 25 (explaining 
that she typically files multiple FOIA requests, usually at CBP and 
ICE); Telephone Interview with Elizabeth Hilton, supra note 25 
(explaining that she files a request with USCIS if the client has ever 
submitted a previous application for any immigration benefit, a request 
with ICE if they have ever been removed, and a request with CBP if they 
have ever had any interaction at a port of entry); Telephone Interview 
with John Rivera, supra note 45 (saying that he typically files a USCIS 
FOIA request and an OBIM request with fingerprints); Telephone 
Interview with William Yates, supra note 48 (explaining that he 
typically files FOIA requests at USCIS, ICE, CBP, and the Department of 
State, because ``I'm looking for anything or any hit that I can get on 
my client''). But see Telephone Interview with Robert Blackshear, supra 
note 25 (asserting that now that OBIM processes requests with 
fingerprints, better results come from that one request and less often 
are multiple requests needed).
    \73\ Office of Biometric Identity Management DEP'T HOMELAND 
SECURITY (Oct. 4, 2016), http://www.dhs.gov/obim [https://perma.cc/
L6E4-MK9K].
    \74\ Executive Office for Immigration Review: Freedom of 
Information Act, U.S. DEP'T JUST., http://www.justice.gov/eoir/freedom-
of-information-act [https://perma.cc/S6SH-ZVBL].
    \75\ Freedom of Information/Privacy Act, FED. BUREAU INVESTIGATION, 
http://www.fbi.gov/services/records-management/foipa [https://perma.cc/
AV6Y-LUY5].
    \76\ About Us, DEP'T ST., https://travel.state.gov/content/visas/
en/about.html [https://perma.cc/4M7Z-FSYX].
    \77\ U.S. DEP'T LAB. EMP. & TRAINING ADMIN., http://
www.foreignlaborcert.doleta.gov [https://perma.cc/2F6Y-7ZRN].
---------------------------------------------------------------------------
    Yet, in many immigration cases, the Government will have gone 
through the same effort behind the scenes to cull the information 
necessary to make a determination about either a removal case or an 
application for an immigration benefit. The FOIA process invokes an 
entire second set of actors--FOIA officers at each agency--to duplicate 
that effort to produce a record for public consumption. Moreover, the 
FOIA officer is unfamiliar with the records at issue, and thus may not 
be equally well-positioned to make determinations about releasing 
records as the official in charge of the underlying case.
    For example, the Trial Attorney who prosecutes a removal case is 
the person most familiar with the case and with whom the collected 
documents reside in immigration court.\78\ Similarly, a USCIS official 
is responsible for processing applications for adjustments of status or 
naturalization and interviewing each applicant, and will have gathered 
the documents necessary for each determination.\79\ Thus, the FOIA 
process duplicates the agency's effort, and the person with the most 
personal knowledge of the records does not make decisions about the 
release of documents to the requester, presenting inefficiencies for 
the agency.
---------------------------------------------------------------------------
    \78\ See Telephone Interview with John Rivera, supra note 45; 
Telephone Interview with William Yates, supra note 48.
    \79\ See Telephone Interview with Elizabeth Hilton, supra note 25.
---------------------------------------------------------------------------
    Finally, as to removal cases that are pending in immigration court, 
many attorneys noted that when they have not received the response to a 
FOIA request, they will use that as the basis to request a continuance, 
thereby potentially holding up the proceedings and using greater agency 
resources in that regard as well.\80\ Each appearance at which 
attorneys must seek a continuance costs the court and the agency 
attorney time and effort. Moreover, courts sometimes hold an inquiry 
about the need for a continuance,\81\ thus necessitating arguments from 
the parties and the further investment of agency resources.
---------------------------------------------------------------------------
    \80\ See, e.g., Telephone Interview with Peggy Brewer, supra note 
25; Telephone Interview with Russell Flores, supra note 25.
    \81\ Telephone Interview with Russell Flores, supra note 25 
(explaining that now they are ``not accepting continuances'' unless the 
attorney can show that there is relief available); Telephone Interview 
with John Rivera, supra note 45 (asserting that immigration judges are 
requiring the client to show prejudice from not having received the 
response to their FOIA request before granting a continuance).
---------------------------------------------------------------------------
    In the isolated instances when FOIA denials are challenged, the 
duplicative nature of the proceedings is only exacerbated. For example, 
in Martins v. United States Citizenship & Immigration Services, an 
attorney for noncitizens in removal proceedings who were seeking asylum 
brought a separate lawsuit under FOIA for access to agency officials' 
notes on his clients' asylum interviews.\82\ Then, because pending 
removal proceedings were at stake, the immigration court issued a 
preliminary injunction to expedite the FOIA case on the basis that the 
attorney's clients would suffer irreparable injury in moving forward 
with the removal cases without the disputed documents.\83\ Thus, an 
entirely separate judicial proceeding was required, and in fact 
expedited, to facilitate the resolution of underlying administrative 
processes.
---------------------------------------------------------------------------
    \82\ 962 F. Supp. 2d 1106, 1110 (N.D. Cal. 2013).
    \83\ Id at 1126, 1128-30.
---------------------------------------------------------------------------
c. First-Person Requesters May Crowd Out Oversight Requesters
    If the news media were intended to be the principal beneficiaries 
of FOIA, they are also now among its harshest critics. And delay is 
among the most prominent critiques journalists and legislators offer of 
the law. A 2016 U.S. House Committee on Oversight and Government Reform 
report entitled ``FOIA Is Broken'' features a section that is headed: 
``The Biggest Barrier of All: Delay, Delay, Delay.''\84\ As one 
journalist lamenting his 4-year wait for records regarding FEMA's 
response to Hurricane Sandy wrote:
---------------------------------------------------------------------------
    \84\ STAFF OF H. COMM. ON OVERSIGHT AND GOV'T REFORM, 114TH CONG., 
FOIA IS BROKEN: A REPORT (2016).

``Incredibly, it took my ProPublica colleague Michael Grabell more than 
7 years to get records about air marshal misconduct from the 
Transportation Security Administration. As he pointed out, his latest 
contact in the FOIA office was still in high school when Grabell filed 
his initial request.''\85\
---------------------------------------------------------------------------
    \85\ Justin Elliott, Trying (and Trying) To Get Records From the 
`Most Transparent Administration' Ever, PROPUBLICA (Mar. 11, 2016, 8 
o'clock AM), http://www.propublica.org/article/trying-to-get-records-
from-most-transparent-administration-ever [http://perma.cc/L3Q2-QTDP].

    Delay is such a problem that a team of developers created an 
algorithm for predicting whether a FOIA request will be successful 
based on its brevity, specificity, and other factors.\86\ As the 
developers explain, ``[w]riting a Freedom of Information Act (FOIA) 
request can be frustrating, largely because it's hard to know what the 
government agency receiving the request will do: respond, delay, 
ignore.''\87\
---------------------------------------------------------------------------
    \86\ Predict Your FOIA Request Success, DATA.WORLD, http://
datadotworld.shinyapps.io/foia_shiny_app [http://perma.cc/984W-LJY2]; 
see also data.world, Predict if Your FOIA Request Will Succeed, 
JOURNALIST'S RESOURCE (July 10, 2017), http://journalistsresource.org/
tip-sheets/predict-foia-request-will-succeed [http://perma.cc/H9CG-
VTZ3] (describing the motivations behind the project).
    \87\ Id.
---------------------------------------------------------------------------
    These are not just anecdotes. Though FOIA requires agencies to 
respond to requests within 20 business days,\88\ in fiscal year 2016 
the average processing time across all Government agencies even for 
requests designated as ``simple'' exceeded that time frame (28.04 
days), and for those requests designated as ``complex,'' the average 
processing time was 128.47 days.\89\ These are, of course, averages, 
which means that particular agencies' averages and particular requests 
can greatly exceed these time frames. For example, the longest time it 
took to answer a simple request at DHS was 1,202 days, and a complex 
request 1,770.\90\ Meanwhile, examples abound of agencies battling 
substantial backlogs, including DHS components.\91\
---------------------------------------------------------------------------
    \88\ 5 U.S.C.  552(a)(6)(A)(i) (2012).
    \89\ FOIA SUMMARY 2016, supra note 3, at 13.
    \90\ Privacy Office, 2016 Freedom of Information Act Report to the 
Attorney General of the United States, DEP'T OF HOMELAND SECURITY 11 
(Feb. 2017), http://www.dhs.gov/sites/default/files/publications/
FY%202016%20DHS%20FOIA%20Annual%20Report.pdf [http://perma.cc/LAP3-
QCEG].
    \91\ See, e.g., FOIA Backlog Skyrockets at US Citizenship and 
Immigration Services, THE FOIA PROJECT (May 8, 2017), http://
foiaproject.org/2017/05/08/uscis-backlog-skyrockets/ [https://perma.cc/
D64W-DWBQ] (noting that ``the backlog of unanswered FOIA requests has 
tripled, climbing from 17,998 at the end of December 2014 to 46,550 at 
the end of December 2016'').
---------------------------------------------------------------------------
    Alongside this backdrop, as documented here, DHS is receiving 
hundreds of thousands of first-person FOIA requests. These requests may 
serve many valuable functions but do not serve FOIA's primary goal of 
informing the public about matters of concern for democratic oversight. 
Comparatively, news media, nonprofit watchdog groups, and other public 
interest requesters whose requests are much more likely to advance the 
primary objective of FOIA are few and far between.
    Elsewhere I have made the case that at some agencies, a glut of 
commercial requesters has, in effect, ``crowded out'' the news media 
and other public-interest requesters.\92\ In other words, the deluge of 
requests that advance private interests necessarily drains agency 
resources, increases response times, and reduces agency attention to 
public-interest requesters. Of course, no definitive causal link can be 
tested.
---------------------------------------------------------------------------
    \92\ Margaret B. Kwoka, FOIA, Inc., 65 Duke L. J. 1361, 1422-24 
(2016).
---------------------------------------------------------------------------
    But the same logical inference can be drawn here as to first-person 
requesters, who likewise largely advance private interests. First-
person FOIA requests, which constitute up to 98 percent of requests at 
some DHS components, necessarily tax the system and leave fewer 
resources for FOIA activities that advance public, rather than private, 
interests. One way in which this is likely to happen is FOIA officer 
specialization. When FOIA officers are tasked with fulfilling routine 
first-person requests day in and day out, they are likely to become 
quite skilled at searching for, reviewing, and redacting those records. 
They know what systems of records to search, how to contact the program 
offices responsible for those systems, and what kinds of exempt 
information is likely to be contained in those records. When the odd 
media request comes in, typically for something newsworthy, a FOIA 
officer is much less likely to have the skillset to handle it adeptly, 
because it is not the bulk of work that they perform. As a result, 
media requesters may in fact even get lower-quality service than first-
person requesters at some agencies. At the very least, responses to 
their requests, even if substantively the same, are likely to be hugely 
delayed by the glut of first-person requesters.
     iii. addressing first-person information needs outside of foia
    For noncitizens who want their own files that are stashed in DHS 
offices, FOIA undoubtedly serves a valuable purpose. For these 
requesters without other options, FOIA serves as stopgap that allows at 
least some way to obtain information that may be critical to securing 
relief from immigration enforcement or an affirmative immigration 
benefit to which they are entitled. But as described above, FOIA is 
often serving those interests poorly, duplicating agency efforts, and 
hindering FOIA's oversight mission.
    Despite these problems, we should not endeavor to curtail FOIA 
rights available to the public. Indeed, we have had little past success 
trying to limit or condition access to records based on motivations or 
likely public interest. For example, prior to FOIA' s enactment in 
1966, the Administrative Procedure Act (APA) had a records access 
provision that supposedly restricted access to Government records to 
``persons properly and directly concerned'' with the information.\93\ 
FOIA was enacted expressly to disavow any restriction based on identity 
or purpose, precisely because this limitation operated so poorly that 
agencies used it as an excuse to deny access arbitrarily.\94\ And any 
shift toward a litmus test for a requester's purpose or identity will 
simply embroil agencies in more battles over who is entitled to submit 
a FOIA request, draining more resources and potentially giving agencies 
tools to hide the very kinds of Government conduct FOIA was designed to 
bring into the light.
---------------------------------------------------------------------------
    \93\ 5 U.S.C.  1002(c) (1964).
    \94\ See Kwoka, supra note [sic] Error! Bookmark not defined., at 
l97 (detailing FOIA's break from the previous APA so-called disclosure 
regime).
---------------------------------------------------------------------------
    Instead, examination of first-person FOIA reveals opportunities for 
agencies to better tailor the provision of information to individuals 
whom the files concern, obviating the need to file a first-person FOIA 
request without limiting anyone's right to do so. Alternative 
mechanisms would both remove the pressure on FOIA to fill the void 
where no other access is provided and better meet the needs of the 
persons seeking access to their own files. Evidence from other agencies 
shows that where members of the public have specific information needs 
that agencies are meeting well through mechanisms outside of FOIA, they 
avail themselves of those tailored alternatives. At DHS, there are 
several promising methods that might reduce the need for individuals to 
rely on FOIA.
a. Administrative Discovery
    If eliminating the need for such a substantial volume of first-
person FOIA requests is a laudable goal, as I think it is, one of the 
most apparent opportunities arises when requesters seek information 
relating to a pending administrative proceeding. In these cases, 
expanded administrative discovery may prevent the need for the flood of 
FOIA requests and better serve the litigants, the proceeding, and even 
the agency.
    To be clear, courts have never found a categorical Constitutional 
right to prehearing discovery in administrative proceedings.\95\ 
Moreover, the Administrative Procedure Act, which provides a baseline 
set of procedures that apply to all agency proceedings, enumerates 
procedures for subpoenas only to the extent the subpoenas are 
``authorized by law,'' meaning they would have to be provided for in a 
particular context by statute or agency regulation.\96\
---------------------------------------------------------------------------
    \95\ See Kelly v. EPA, 203 F.3d 519, 523 (7th Cir. 2000); Alexander 
v. Pathfinder, Inc., 189 F.3d 735, 741 (8th Cir. 1999); NLRB v. 
Interboro Contractors, Inc.; 432 F.2d 854, 857-58 (2d Cir. 1970); 
Chafian v. Ala. Bd. of Chiropractic Exam'rs, 647 So. 2d 759, 762 (Ala. 
Civ. App. 1994); Pet v. Dep't of Health Servs., 542 A.2d 672,677 (Conn. 
1988); In re Herndon, 596 A.2d 592, 595 (D.C. 1991); In re Tobin, 628 
N.E.2d 1268, 1271 (Mass. 1994); State ex rel. Hoover v. Smith 1482 
S.E.2d 124, 129 (W. Va. 1997).
    \96\ 5 U.S.C.  555(d) (2012) (``Agency subpenas authorized by law 
shall be issued to a party on request and, when required by rules of 
procedure, on a statement or showing of general relevance and 
reasonable scope of the evidence sought.'').
---------------------------------------------------------------------------
    Nonetheless, discovery in administrative proceedings has long been 
favored. Early in the history of the APA, the Administrative Conference 
of the United States (ACUS) recommended ``that agencies adopt rules 
providing for discovery against the parties and against the agency to 
the extent and in the manner appropriate to their respective 
proceedings.''\97\ In 1993, ACUS issued model adjudication rules which 
adopted extensive discovery procedures akin to those available under 
the Federal Rules of Civil Procedure.\98\ In fact, agencies like the 
SEC that have not adopted broad discovery rights in administrative 
proceedings have come under heavy attack.\99\ As a result, many 
agencies have adopted broad discovery rights, including those that 
adopt the ACUS-recommended model of following Federal court discovery 
practices.\100\
---------------------------------------------------------------------------
    \97\ SELECTED REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE 
UNITED STATES, S. Doc. No. 88-24, at 12 (1963).
    \98\ See M0DEL ADJUDICATION RULES WORKING GRP., ADMIN. CONFERENCE 
OF THE U.S., MODEL ADJUDICATION RULES (1993), http://www.acus.gov/
sites/default/files/documents/1993-model-adjudication-rules.pdf [http:/
/perma.cc/2G7D-EYK3].
    \99\ See, e.g., David Zaring, Enforcement Discretion at the SEC, 94 
TEX. L. REV. 1155, 1169 (2016) (noting that limited SEC administrative 
discovery leads litigants to choose actions in Federal court over 
actions before an agency administrative law judge).
    \100\ For example, in 2009, the Federal Trade Commission adopted 
administrative procedures for ALJ proceedings with broad, Federal-
court-style discovery rights. See 16 C.F.R.  3.31 (2016).
---------------------------------------------------------------------------
    But in other proceedings, discovery rights are all but nonexistent, 
and first-person FOIA requesting serves as a stand-in. Removal 
proceedings are a prime example. In immigration court--an 
administrative adjudicatory body run by the Executive Office of 
Immigration Review--the only discovery available is by applying for a 
subpoena, which requires a motion and various justifications.\101\ 
Geoffrey Heeren has documented that requests for subpoenas and related 
depositions were routinely denied early on, and litigants apparently 
stopped even trying to use them after some time because attempts were 
futile.\102\ In a 2010 decision, the Court of Appeals for the Ninth 
Circuit ruled that the Government has an obligation to provide helpful 
information from a noncitizen's file in the course of removal 
proceedings, at least in circumstances in which the file would 
demonstrate non-removability, such as when those records would prove 
the individual is actually a citizen.\103\ But because a showing of 
prejudice is required to make out such a claim,\104\ the Government has 
read the decision narrowly and, even in the Ninth Circuit, has not 
followed its mandate strictly.\105\
---------------------------------------------------------------------------
    \101\ Office of the Chief Immigration Judge, Immigration Court 
Practice Manual, U.S. DEP'T JUSTICE 93 (May 15, 2017), http://
www.justice.gov/sites/default/files/pages/attachments/2017/05/26/
practice_manual1.pdf [http://perma.cc/9K67-JU4D].
    \102\ Heeren, supra note 24, at 1583.
    \103\ Dent v. Holder, 627 F.3d 365, 374-75 (9th Cir. 2010).
    \104\ Jd.. at 373-74; DaSilva v. U.S. Att'y Gen., No. 13-13, 2013 
U.S. Dist. LEXIS 56507, at *5-6 (E.D. La. Apr. 19, 2013) (requiring a 
robust showing of prejudice to make out a due process claim based on 
withheld records).
    \105\ Heeren, supra note 24, at 1586.
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    Interviews with immigration attorneys confirm that, in practice, 
formal discovery as of right [sic] is not available in immigration 
court and that trial attorneys prosecuting immigration cases on behalf 
of DHS, even those located within the Ninth Circuit, are not providing 
access to discovery materials through immigration court 
proceedings.\106\ Attorneys also largely agreed that when documents 
were provided by the trial attorney to immigration defense counsel, it 
was typically through the informal practice of a particular trial 
attorney or office or as a result of a relationship with the particular 
attorney.\107\
---------------------------------------------------------------------------
    \106\ Telephone Interview with Robert Blackshear, supra note 25; 
Telephone Interview with Peggy Brewer, supra note 25; Telephone 
Interview with Russell Flores, supra note 25; Telephone Interview with 
Gloria Glen, supra note 25; Telephone Interview with Elizabeth Hilton, 
supra note 35; Telephone Interview with John Rivera, supra note 45; 
Telephone Interview with William Yates, supra note 48.
    \107\ See, e.g., Telephone Interview with Robert Blackshear, supra 
note 25 (``It varies widely between the field offices . . . Sometimes 
some offices will provide you with the I-213, the NTA, anything you 
need. Especially ones that you're cool with, that you work with all the 
time. They'll give you what you want and what you need in order to 
properly represent the guy. Other field offices are like, `No file 
FOIA.' ''); Telephone Interview with Peggy Brewer, supra note 25 
(noting that while sometimes a court will order a document to be 
produced, most of the time as to the most important documents, the 
attorney will provide them voluntarily); Telephone Interview with 
William Yates, supra note 48 (``Some [trial attorneys] that I[] have 
some kind of relationship with D, they'll tell me like `Hey, you know 
what? We have this,' and they'll give [the documents] to me.''). But 
see Telephone Interview with Gloria Glen, supra note 25 (``[Y]ou can 
contact government counsel and ask them for whatever specific document 
you're looking for, but you're almost never going to get it.''); 
Telephone Interview with John Rivera, supra note 45 (``[V]ery rarely 
have I had anybody be cooperative'' about discovery.).
---------------------------------------------------------------------------
    Discovery in immigration court could improve efficiency at the 
administrative level. To begin, attorneys are nearly always seeking the 
very records in the possession of the trial attorney in the 
proceeding.\108\ Making a FOIA request, however, requires the 
individual or their attorney to file with the main FOIA office, which 
then has to assign the request to a FOIA officer to process. That FOIA 
officer will almost inevitably come back around to looking at the same 
file that the trial attorney has on his desk. Involving another person 
in the process who has no local or personal connection with the 
proceeding seems inevitably inefficient for the agency. To be fair, at 
users, the only agency that separately tracks FOIA requests related to 
a pending removal proceeding, only 3 percent of requests fall in that 
category.\109\ But because of the volume of requests at that agency, 
that still translates to over 5,000 requests a year at users 
alone.\110\
---------------------------------------------------------------------------
    \108\ See, e.g., Telephone Interview with John Rivera, supra note 
45 (``It's [] absurd that the government will run fingerprints and not 
provide the respondent and their attorney with the results. It doesn't 
make any sense from anybody's perspective. They're already doing it 
anyway. They're already getting that information. They already have 
that and that would dispose of a lot of things like are you eligible 
for cancellation? Are you eligible for a bond?'').
    \109\ See users data, supra note 10. In fiscal year 2015, users 
started tracking those requests related to pending removal proceedings 
as ``track 3'' in April of that year. Thus, only 5 months of data are 
included for these purposes, which show 2,599 track 3 requests out of 
82,402, or 3 percent. Extrapolating that percentage to the full 165,233 
requests that year, that would be the equivalent of approximately 5,211 
requests. Id.
    \110\ Id.
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    Beyond mere resources, however, proceedings would become fairer. If 
the Government attempts to inappropriately withhold or redact certain 
records in the course of a discovery process, the immigration judge 
would be empowered to adjudicate the rights of the individual to access 
the records and ensure the Government does not over-withhold. This 
would reduce the chances that barriers to information foil a valid 
defense or claim the individual might otherwise make. It would also 
ensure that individuals do not give up their otherwise potentially 
meritorious claims or defenses simply because they are unwilling to 
wait for the FOIA process to run its course. In this way, both 
individuals and the agency might be better served.
    Discovery would also improve a potentially much larger group of 
noncitizens' matters before DHS: Applications by noncitizens for 
affirmative benefits, such as an adjustment of status from a non-
immigrant visa to an immigrant visa (green card holder) or 
naturalization. There, once a facially adequate application is 
submitted, there is typically an interview with a users official if the 
government has any doubt about the merit.\111\ However, those 
interviews can end in surprise revelations about evidence relied on by 
the Government, which may or may not be accurate.\112\ One attorney I 
spoke to suggested that it would be easy for the Government to 
disclose, in advance of the interview, evidence on which it planned to 
rely in making its decision, so that the noncitizen could bring any 
additional evidence that might bear on its authenticity or 
relevance.\113\
---------------------------------------------------------------------------
    \111\ Telephone Interview with Elizabeth Hilton, supra note 25.
    \112\ Id. (``I'll go to an interview--just recently an officer will 
say, oh, well--to the client, you made a false claim of citizenship at 
the port of entry in 2006, and the client will say, `no, I didn't do 
that.' `Well, we have a record that you did,' and they'll deny the 
case. But what are they talking about? Is it the right person? Because 
a lot of our clients have the same names as their siblings or, you 
know, is there a--based on those facts, would there be an exception to 
the false claim of citizenship? Well, I don't know because I don't have 
the facts, the officer does and this happens all the time. And when I 
say can I get a copy of that . . . a lot of times they'll say, `no, you 
could see it through a FOIA request.' '')
    \113\ Id.
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b. Eliminate Request and Return
    Another group of first-person FOIA requesters uses FOIA to obtain 
documents needed to demonstrate entitlement to a Government benefit. 
That is, a requester receives a document under FOIA from the Government 
only to return it to the Government with an application or submission 
connected with another agency proceeding.
    DHS may have opportunities to eliminate this practice of requesting 
and returning the record. In many cases where noncitizens apply for 
affomative immigration benefits, they are required to submit proof of 
certain past immigration actions, such as lawful entry into the country 
on a visa, or a prior petition for benefits that was filed on their 
behalf. If long periods time have passed, applicants may have lost 
these documents, but the Government retains copies. One attorney 
explained:

``[O]ne example is if someone enters lawfully but they have no proof of 
it, right, you're required to get--they request an I-94 [a form 
documenting arrivals to the United States]. Oftentimes USCIS has that 
record, so why do we have to do a FOIA to produce that record? . . . 
Can you provide us with this proof of entry if we know it exists?'' 
\114\
---------------------------------------------------------------------------
    \114\ Telephone Interview with Peggy Brewer, supra note 25.

    Accordingly, eliminating request-and-return may realize significant 
benefits for both the individual and the Government. The process can 
delay the requester's application for a benefit for which they qualify, 
and it requires the agency to engage in two separate processes--one 
under FOIA and one to determine the benefit.
c. On-line Access
    Another promising avenue for meeting the needs of first-person FOIA 
requesters are on-line platforms for access. On-line access may seem 
like an odd suggestion given that first-person requesting is typically 
targeted at information that poses privacy concerns. Yet we all 
routinely access our private information through logins or other 
verification mechanisms, and we typically accept the host's best 
efforts at protecting data privacy. Of course, whenever the Government 
considers on-line access, it should consider those risks, the 
sensitivity of the information, and the necessary measures to guard 
against any risk. But these risks should not prevent consideration of 
on-line access as an overall positive move in some cases.
    Indeed, at least one DHS component has tried on-line access 
initiatives to obviate the need for categories of FOIA requests, even 
when individual information was at issue. In 2014, CBP launched a 
website that would allow noncitizen visitors to the United States who 
are not Green Card holders to access their arrival and departure 
records for the past 5 years.\115\ As the agency explained at the time, 
``[t]his electronic travel-history function means that travelers may no 
longer need to file Freedom of Information Act requests to receive 
their arrival/departure history, greatly speeding their process.''\116\ 
CBP simply required the individual to enter their name, date of birth, 
and passport information to retrieve the records from its 
database.\117\ Basic verification may well be sufficient for access to 
these records, since the underlying data is, although personal, not the 
most sensitive.
---------------------------------------------------------------------------
    \115\ Arrival/Departure History Now Available on I-94 Webpage, U.S. 
CUSTOMS & BORDER PROTECTION (Apr. 30, 2014), http://www.cbp.gov/
newsroom/spotlights/arrival-departure-history-now-available-i-94-
webpage [http://perma.cc/C9B3-R2BH].
    \116\ Id.
    \117\ Id; see also View Travel History, U.S. CUSTOMS & BORDER 
PROTECTION, http://i94.cbp.dhs.gov/l94/#/history-search [http://
perma.cc/HX95-3F85] (providing form for nonresident visitors to access 
their records). For reasons that have not been publicly explained, the 
agency has asserted that ``the I-94 search tool has not eliminated FOIA 
requests for the records.'' Compliance Review of Customs and Border 
Protection Freedom of Information Act Program, OFF. Gov'T INFO. SERVS. 
16, http://www.archives.gov/files/ogis/assets/cbp-foia-compliance-
report.pdf [http://perma.cc/UEU8-F77A].
---------------------------------------------------------------------------
                             iv. conclusion
    DHS has strong leadership in the Privacy Office and in the FOIA 
offices of the components. It has an opportunity to craft solutions for 
noncitizens seeking their own immigration records outside of FOIA that 
will make the volume of FOIA requests unnecessary. These other 
mechanisms also should be designed to best serve the members of the 
public whose interest in these records is nothing short of critical. 
Creative alternatives to FOIA will improve the relationship between the 
public and the agencies, and between oversight requesters and FOIA 
offices.
                                 ______
                                 
         Statement Submitted by Chairwoman Xochitl Torres Small
                            October 17, 2019
    We, the undersigned organizations, thank the Oversight, Management, 
and Accountability Subcommittee of the Committee on Homeland Security 
for scheduling this important hearing on improving public access to 
critical records at the Department of Homeland Security. We write to 
recommend that the committee expand its oversight of the Department's 
implementation of the Freedom of Information Act (FOIA) and ensure its 
compliance with the statute as enacted by Congress.
    The Department of Homeland Security faces a significant challenge 
as it and its component agencies respond to approximately 40 percent of 
all Freedom of Information Act requests sent to the Federal Government 
in 2018.\1\ It also has a significant backlog of requests and responds 
to a range of topics including everything from immigration files to 
complex cases involving transnational crime. There is a crucial public 
interest at stake in ensuring the public can exercise its right to 
access Government information, it is therefore critical that the agency 
significantly improve both its records management and its processes for 
complying with FOIA.
---------------------------------------------------------------------------
    \1\ Department of Homeland Security, FOIA Annual Report for 2018. 
https://www.dhs.gov/sites/default/files/publications/
dhs_fy2018_foia_report_updated.pdf.
---------------------------------------------------------------------------
   recommendation: remove alien files requests from the foia process
    Requests related to individuals who are dealing with an immigration 
enforcement action against them consume a disproportionate amount of 
the Department's limited FOIA resources. This imbalance results in 
duplication of work, unnecessary delays in immigration courts, and a 
distorted public view of the FOIA statute, the purpose of which is to 
provide access to information about Government, not as a vehicle for 
individuals to access information about themselves.
    In a recent presentation to the FOIA advisory committee, Professor 
Margaret Kwoka stated:\2\
---------------------------------------------------------------------------
    \2\ Professor Margaret Kwoka, FOIA Advisory Committee at the 
National Archive. June 6, 2019 https://www.archives.gov/ogis/foia-
advisory-committee/2018-2020-term/meetings.

``The person who is in removal proceeding has to file a FOIA request 
with the main FOIA office which then has to assign that request to a 
FOIA officer for processing. That person (the FOIA officer) will 
inevitably come back around and look to--and find--the same sets of 
records that the trial attorney has on their desk in immigration court. 
So this not only duplicates work in some sense but also means the judge 
in immigration proceedings--in immigration court--can't resolve any 
disputes that arise over the records. Many attorneys noted that when 
they hadn't received a response to their FOIA request, they will use 
that as a basis for continuance in immigration court so thereby 
potentially holding up the underlying proceedings and using greater 
---------------------------------------------------------------------------
agency resources in that regard as well (emphasis added).''

    There is no statutory requirement that immigrants must request 
their Alien Files (A-files) through the Freedom of Information Act; 
instead, the requirement comes from DHS regulations. Moreover, in Dent 
v Holder, the 9th Circuit held that immigrants have a right to 
proactive disclosure of their records and are not required to seek them 
using the FOIA process.\3\ To preserve limited resources and streamline 
the process for both requestors and FOIA officers, DHS must enact new 
regulations under the Administrative Procedures Act or create a new 
system for processing of A-files that doesn't rely on the Freedom of 
Information Act. We encourage the committee to direct DHS to update its 
regulations and reform its internal policies to separate this process 
from FOIA.
---------------------------------------------------------------------------
    \3\ National Immigration Council. ``Dent v. Holder Strategies for 
Obtaining Documents from the Government during Removal Proceedings.'' 
June 12, 2012,  https://www.americanimmigrationcouncil.org/sites/
default/files/practice_advisory/dent_practice- _advisory_6-8-12.pdf.
---------------------------------------------------------------------------
        recommendation: allocate funding for digitizing records
    The Department of Homeland Security spends a significant portion of 
its FOIA resources processing immigration-related files; a burden that 
could be reduced by modernizing the process. The committee should 
allocate funding for technology that allows the various components to 
more quickly share records as needed for the purposes of FOIA. A recent 
report by the Office of Government Information Services recommended, in 
part, that USCIS and DHS:\4\
---------------------------------------------------------------------------
    \4\ Office of Government Information Service. Compliance Review of 
U.S. Citizenship and Immigration Services. February 9, 2018, https://
www.archives.gov/files/uscis-foia-compliance-assessment-report.pdf.

``Weigh the costs and benefits of producing machine-readable digitized 
versions of A-Files that will enable the use of computer assisted 
review tools; [and] explore how technology can be used to ensure that 
---------------------------------------------------------------------------
records do not need to be re-processed multiple times.''

    Given the scale of DHS FOIA operations, allocation of funding for 
such technology could result in reduced spending in the long-term by 
reducing duplicative work and making it easier to process requests.
      recommendation: expand fee waivers and expedited processing
    The committee should call on the Department of Homeland Security to 
expand the use of fee waivers and expedited processing under FOIA. In 
2018, DHS received 4,103 requests for expedited processing and granted 
it in only 588 cases; approximately 14 percent of the time.\5\ 
Expedited processing is crucial to the public's right to know 
information of critical public interest, to ensure timely research by 
academics, and to uphold the due process rights of immigrants. The 
committee should further direct the agency to expand the use of fee 
waivers, in particular by the U.S. Coast Guard, which accounts for 80 
percent of FOIA fee requests for the entire Department. Requiring the 
public to pay fees to access public documents is detrimental to the 
right to information, sometimes limiting access to those who are able 
to pay exorbitant fees. In fiscal year 2018, DHS collected $18,518 in 
fees which amounts to approximately 0.03 percent of the entire FOIA 
budget of DHS, demonstrating that FOIA fees are not crucial to funding 
the FOIA office.
---------------------------------------------------------------------------
    \5\ Department of Homeland Security supra (n 1) 18.
---------------------------------------------------------------------------
         recommendation: expand cooperation between components
    Given the size of DHS, and the overlapping missions of many of its 
components, the committee should direct DHS to expand cooperation 
between its offices under FOIA. It is common for DHS to receive a FOIA 
request and redirect the request to one of its components for 
processing. While it is encouraging that these organizations 
communicate with each other to fulfill requests, this process can also 
cause unnecessary delays. For the purposes of FOIA, the committee 
should expand, through legislation if necessary, the access of FOIA 
officers to electronic records. Currently, many FOIA officers do not 
have direct access to the records that have been requested and must 
retrieve records from other agency employees. Expanding the access of 
FOIA officers within and between agencies would minimize delays and 
expand cooperation between components.
    recommendation: direct dhs to reduce its reliance on exemptions
    FOIA officers at the Department of Homeland Security have a pattern 
of over-use of FOIA exemptions. In 2018, DHS received 395,751 FOIA 
requests and applied a redaction more than 400,000 times. In 
particular, the Department relies heavily on FOIA's Exemption 7, which 
allows the Government to withhold documents that are law enforcement-
sensitive.\6\ In almost half of requests for documents, the Department 
argued that redacted information, if released, ``could reasonably be 
expected to risk circumvention of the law,'' a rate of use that clearly 
suggests excessive redactions. The committee should therefore direct 
DHS and its components to review their pattern and practice related to 
the use of exemptions.
---------------------------------------------------------------------------
    \6\ infra.
---------------------------------------------------------------------------
      continuing oversight as a check against potential dhs abuses
    Freedom of Information Act requests are a critical tool used to 
uncover evidence of potential rights abuses by the Department of 
Homeland Security. For example, following reports of mistreatment of 
at-risk detainees in Federal detention centers, American Oversight is 
suing under FOIA to obtain records on the treatment of transgender, 
pregnant, and juvenile detainees. Records recently obtained by the 
Project On Government Oversight shed light on ICE's use of solitary 
confinement for detainees with mental illnesses.
    Examples such as these demonstrate that not only is it necessary 
for the committee to direct DHS to reform its FOIA practices in the 
ways recommended above, but the committee must also continue its 
vigorous oversight of DHS's compliance with FOIA as a way to protect 
against potential civil and human rights violations by the Department.
                                         American Oversight
                                            Demand Progress
                             Electronic Frontier Foundation
                          Government Accountability Project
                  National Freedom of Information Coalition
                                  National Security Archive
                                        Open the Government
                            Project On Government Oversight

    Ms. Torres Small. The Members of the subcommittee may have 
additional questions for the witnesses, and we ask that you 
respond expeditiously in writing to those questions.
    Without objection, the committee record shall be kept open 
for 10 days.
    Hearing no further business, the subcommittee stands 
adjourned.
    [Whereupon, at 4:06 p.m., the subcommittee was adjourned.]



                           A P P E N D I X  I

                              ----------                              

         Letter From the Electronic Privacy Information Center
                                  October 18, 2019.
The Honorable Xochitl Torres Small, Chairwoman,
The Honorable Dan Crenshaw, Ranking Member,
U.S. House Committee on Homeland Security, Subcommittee on Oversight, 
        Management, and Accountability, H2-176 Ford House Office 
        Building, Washington, DC 20515.
    Dear Chairwoman Small and Ranking Member Crenshaw: We write to you 
in regarding your hearing on ``The Public's Right to Know: FOIA at the 
Department of Homeland Security''\1\ to share our perspective and 
Freedom of Information Act (``FOIA'') work. The Electronic Privacy 
Information Center (``EPIC'') is a nonpartisan research center 
established in 1994 to focus public attention on emerging privacy and 
civil liberties issues.\2\ EPIC is a leading advocate for open 
government and democratic values in the information age. We value FOIA 
and the work of this committee to promote open government.
---------------------------------------------------------------------------
    \1\ The Public's Right to Know: FOIA at the Department of Homeland 
Security, House Comm. on Homeland Security, Subcomm. on Oversight, 
Management, and Accountability, 116th Cong. (Oct. 17, 2019), https://
homeland.house.gov/the-publics-right-to-know-foia-at-the-department-of-
homeland-security.
    \2\ See EPIC, About EPIC, https://epic.org/epic/about.html.
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                           importance of foia
    The FOIA is critical for the functioning of democratic government 
because it helps ensure that the public is informed about matters of 
public concern. Public awareness of our Government's activity through 
the FOIA not only allows for a more informed public debate over the 
activities of Government, but also ensures accountability for 
Government officials. Public debate fosters the development of more 
robust security systems and leads to solutions that better respect the 
Nation's democratic values. EPIC's FOIA litigation has resulted in 
disclosure of critical information about the activities of the 
Government. Our litigation has also generated case law that benefits 
the FOIA requesters and the open Government community across the 
country.
    This is particularly true in matters concerning privacy and civil 
liberties. Among EPIC's most significant undertakings in our 25 years 
was the litigation against DHS that led to the removal the backscatter 
X-ray devices from U.S. airports. Those devices were ineffective, 
invasive, and unlawful. In EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011), 
the DC Circuit Court of Appeals held that the agency failed to conduct 
a public rulemaking as required by law and must also ensure that 
passengers are given the opportunity to opt-out if they so choose. We 
are now litigating similar regarding DHS's use of facial recognition 
technology, uncovering similar problems with the technology and the 
agency's failure to undertake a rulemaking prior to deployment.\3\
---------------------------------------------------------------------------
    \3\ EPIC v. CBP (Biometric, Entry/Exit Program), No. 17-1438 
(D.D.C. filed July 19, 2017), See https://epic.org/foia/dhs/cbp/
biometric-entry-exit/; EPIC v. CBP (Alternative Screening Procedures), 
No. 19-cv-689 (D.D.C. filed Mar: 12, 2019); See https://epic.org/foia/
dhs/cbp/alt-screening-procedures.
---------------------------------------------------------------------------
    In EPIC v. DHS, 18-1268 (D.D.C. filed May 30, 2018), EPIC sued to 
obtain records about--and to block the development of--a DHS system 
designed to monitor journalists, news outlets, and social media 
accounts. This ``Media Monitoring Service'' platform would have 
included an ``unlimited'' database of personal information from 
journalists and media influencers, including location data, contact 
information, employer affiliation, and past content. Because of EPIC's 
lawsuit, the DHS suspended the controversial program. In a settlement 
with EPIC, the agency acknowledged that it would discontinue use of the 
system and agreed to complete the required Privacy Impact Assessments 
before restarting the program. EPIC also obtained records through the 
lawsuit showing that the DHS ignored the harms that media monitoring 
would have caused to privacy and press freedom.\4\ In an earlier FOIA 
lawsuit, EPIC v. DHS, 11-2261 (D.D.C. filed Dec. 20, 2011), EPIC 
obtained documents that revealed that the DHS is monitoring social 
networks and media organizations for criticism of the agency. EPIC also 
obtained a list of very broad search terms used by the agency to 
monitor social media. As a result of EPIC's findings, Congress held a 
hearing on ``DHS Monitoring of Social Networking and Media: Enhancing 
Intelligence Gathering and Ensuring Privacy.''\5\
---------------------------------------------------------------------------
    \4\ EPIC, EPIC v. DHS (Media Monitoring Services), https://
epic.org/foia/dhs/media-monitoring-services/.
    \5\ DHS Monitoring of Social Networking and Media: Enhancing 
Intelligence Gathering and Ensuring Privacy, H. Comm. on Homeland 
Security, Subcomm. on Counterterrorism and Intelligence, 112th 
Cong.(2012).
---------------------------------------------------------------------------
    And in response to a FOIA request to Customs and Border Protection, 
CBP released documents detailing the agency's scramble to implement the 
flawed Biometric Entry-Exit system, a system that employs facial 
recognition technology on travelers entering and exiting the 
country.\6\ The documents describe the administration's plan to extend 
the faulty pilot program to the Transportation Security Administration, 
Immigration and Customs Enforcement, and the Coast Guard. The released 
information also includes a memorandum of understanding that shows 
there are no limitations on how partnering airlines can use the facial 
recognition data collected at airports. The documents obtained by EPIC 
were covered in-depth by Buzzfeed News \7\ and cited by Members of 
Congress commenting on their concerns of facial recognition.
---------------------------------------------------------------------------
    \6\ EPIC, EPIC v. CBP (Biometric Entry/Exit Program), https://
epic.org/foia/dhs/cbp/biometric-entry-exit/.
    \7\ Davey Alba, The U.S. Government Will Be Scanning Your Face At 
20 Top Airports, Documents Show (Mar. 11, 2019), https://
www.buzzfeednews.com/article/daveyalba/these-documents-reveal-the-
governments-detailed-plan-for.
---------------------------------------------------------------------------
    These are just 3 examples of the many FOIA cases EPIC has pursued 
with DHS over the years. They demonstrate the importance of the Freedom 
of Information Act and the oversight like the subcommittee is 
conducting today.
              epic 's previous foia reform efforts at dhs
(1) Political Review of FOIA Requests
    In 2011, EPIC testified before the House Oversight Committee 
regarding Homeland Security's political review of FOIA requests and the 
effects of the agency's policies on requesters.\8\ The hearing arose 
after reports that DHS career staff repeatedly questioned the political 
review policy.\9\ The hearing followed an earlier release of 1,000 
agency documents revealing the long-standing process of vetting FOIA 
requests by political appointees. In a previous letter to the 
committee, EPIC and a coalition of open Government groups wrote that 
FOIA does not permit agencies to select requests for political 
scrutiny.\10\ Thanks to the bipartisan work at the time of the House 
Oversight Committee, that practice was suspended.
---------------------------------------------------------------------------
    \8\ Testimony and Statement for the Record of John Verdi, Senior 
Counsel, EPIC: Before the House Committee on Oversight and Government 
Reform (Mar. 31, 2011), https://republicans-oversight.house.gov/wp-
content/uploads/2012/01/Verdi_Testimony.pdf.
    \9\ See Jake Sherman, Probe Reviews Tensions at DHS, Politico (Mar. 
29, 2011), https://www .politico.com/story/2011/03/probe-reveals-
tensions-at-dhs-052114.
    \10\ Letter from Marc Rotenberg, et al. to Darrell Issa, Chairman 
and Elijah Cummings, Ranking Member, House Comm. on Oversight and Gov't 
Reform (Feb. 15, 2011), https://epic.org/open_gov/foia/
Issa_FOIA_Oversight_Ltr_02_15_11.pdf.
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(2) FOIA and Fee Waivers
    Beginning in 2012, EPIC led an effort to reform the DHS practice of 
unnecessarily failing to grant fee waivers. As we explained ``the DHS 
and its components routinely deny fee waiver requests to individuals 
and groups. This practice is harmful to requesters and contravenes the 
purpose of FOIA and the specific reason for the fee waiver provision.' 
''\11\ In the letter to the Office of Government Information Services, 
the FOIA Ombudsman, EPIC urged an investigation to assess the impact of 
this agency practice. EPIC asked: How often does the DHS deny a FOIA 
requesters' request for a blanket fee waiver? What percentage of FOIA 
requesters in receipt of a constructive denial follow up with the 
agency and, when they do not, has the fee waiver request ever been 
deemed abandoned? Has a FOIA requester who requester a blanket fee 
waiver ever had fees assessed against them?
---------------------------------------------------------------------------
    \11\ Letter from EPIC to Miriam Nisbet, Director, Office of Gov't 
Info. Serv. (June 1, 2012), https://epic.org/foia/dhs/EPIC-DHS-FOIA-
OGIS-Ltr-06-01-12.pdf.
---------------------------------------------------------------------------
    The OGIS investigated and the DHS reformed its practices regarding 
fee waivers. As the OGIS explained later that year, the DHS implemented 
a new Department-wide policy where the agency conditionally grants fee 
waiver requests if the request meets the 6 analytical factors required 
under DOJ guidelines for a fee waiver and that the requester cannot 
appeal a conditional fee waiver grant because it is not a final 
decision.\12\ OGIS also told EPIC that DHS will start informing non-
commercial requesters who chose not to pay fees that they are entitled 
to 2 free hours of search time and 100 free pages of duplication. DHS 
also agreed to provide requesters with an itemized breakdown of fees--
an action the agency previously did not undertake.
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    \12\ Letter from Miriam Nisbet, Director, Office of Gov't Info. 
Serv., to Amie Stepanovich, EPIC (Oct. 12, 2012), https://epic.org/
open_gov/foia/OGIS-to-EPIC-re-DHS-10-19-12.pdf.
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(3) Reforming Impermissible Administrative Closures
    In 2014, EPIC and a coalition of open Government groups wrote to 
OGIS to investigate the Transportation Security Agency and other 
agencies impermissibly closing FOIA requests and breaching their FOIA 
obligations.\13\ Through ``still interested'' letters, some Federal 
agencies notify FOIA requesters that unprocessed requests will be 
closed by the agency if there is no further communication. In the 
letter, EPIC and the open Government groups objected to the practice 
and reminded OGIS that ``no provision in the [FOIA] allows for 
administrative closures.''
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    \13\ Letter from EPIC et al., to Miriam Nisbet, Director, Office of 
Gov't Info. Serv. (Oct. 30, 2014), https://foia.rocks/
OGIS_Letter_final.pdf.
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    OGIS undertook an investigation in the FOIA practices of 6 DHS 
component agencies later that year.\14\ The OGIS director also directed 
the OGIS Compliance Team to review the use of ``still interested'' 
letters Government-wide. In its findings, OGIS found that ``there is no 
guidance or standard for reporting requests that agencies close using 
still interested letters.''\15\ OGIS recommended better reporting on 
these letters and that the agencies regularly communicate with 
requesters about the status of their request without having to resort 
to using still interested letters.\16\
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    \14\ Letter from James Holzer, Director, Office of Gov't Info. 
Serv., to EPIC et al. (Aug. 27, 2015), https://epic.org/foia/ogis/OGIS-
Letter-20150828-Administrative-Closures.pdf.
    \15\ Office of Gov't Info. Serv., Nat'l Archives and Records 
Admin., Compliance Review of the Use of ``Still Interested'' Letters 
Part 1 (May 11, 2016), https://www.archives.gov/files/ogis/assets/
still-interested-part-1-final.pdf.
    \16\ Office of Gov't Info. Serv., Nat'l Archives and Records 
Admin., Compliance Review of the Use of ``Still Interested'' Letters 
Part 3 (May 11, 2016), https://www.archives.gov/files/ogis/assets/
still-interested-part-3-final.pdf.
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(4) Improvement of Processing FOIA Requests
    In 2016, the DHS released revised FOIA regulations that implemented 
some of EPIC's recommendations to revise the agency's regulation and 
incorporate new procedures that would ease the public's efforts to 
learn about the activities of the Government.\17\ EPIC had submitted 
extensive comments on the proposed changes to the agency's open 
Government practices.\18\ The DHS agreed to make some changes that 
improved the processing of FOIA requests. The agency maintained a broad 
definition of ``education institutions'' so individual researchers can 
access Government records at minimal cost, and clarified steps that 
could be taken to delay ``administrative closure,'' a controversial 
agency practice.
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    \17\ Freedom of Information Act Regulations, 6 C.F.R. Part 5 
(2016).
    \18\ Comments of EPIC to the Dept. of Homeland Sec.: Freedom of 
Information Regulations 6 CFR Part 5, Docket No. DHS-2009-0036, Notice 
of Proposed Rulemaking (Sept. 28, 2015), https://epic.org/apa/comments/
EPIC-DHS-FOIA-Comments-Final.pdf.
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    EPIC offers further recommendations to improve transparency at the 
agency.
DHS Needs to Improve the Processing of FOIA Requests
    The Department is one of the largest Federal agencies, with an 
annual budget of $92.1 billion for fiscal year 2020.\19\ The agency now 
has 14 components.\20\ The annual budget for the Transportation 
Security Agency alone is $7.8 billion for fiscal year 2020.\21\ Yet the 
agency has one of the worst FOIA processing records in the Federal 
Government. According to the Summary of Annual FOIA Reports for Fiscal 
Year 2018, DHS is responsible for 41 percent of backlogged FOIA 
requests across the entire Federal Government.\22\ Far behind at No. 2 
is the Department of Justice with 13 percent of backlogged 
requests.\23\ And significantly, DHS was asked by other agencies for 
consultations on FOIA requests less frequently than the DOD, the DOJ, 
or the CIA.\24\ That means the backlog problem at the DHS is even 
higher than the raw numbers suggest.
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    \19\ Dept. of Homeland Sec., Fiscal Year 2020 Budget in Brief 1, 
https://www.dhs.gov/sites/default/files/publications/19_0318_MGMT_FY-
2020-Budget-In-Brief.pdf.
    \20\ Operational and Support Components, Dept. of Homeland Sec. 
(Nov. 20, 2018), https://www.dhs.gov/operational-and-support-
components.
    \21\ Dept. of Homeland Sec., Fiscal Year 2020 Budget in Brief, at 
30.
    \22\ Dept. of Justice, Summary of Annual FOIA Reports for Fiscal 
Year 2018 10, https://www.justice.gov/oip/page/file/1170146/
download#FY18.
    \23\ Id.
    \24\ Id. at 14.
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    In past years, the DHS's Chief FOIA Officer Reports describe 
instances where the DHS Privacy Office partnered with other sub-
components to assist in reducing its backlog. For instance, the DHS 
achieved a backlog reduction fiscal year 2018 when the DHS Privacy 
Office partnered with OBIM, CBP, and ICE to reduce the backlogs by 
12,000 requests.\25\ The DHS should continue these partnerships to 
reduce the agency's backlogs. But the agency must also prioritize the 
processing of new FOIA requests.
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    \26\ Dep't of Homeland Security, 2019 Chief Freedom of Information 
Act Officer Report 38 (Apr. 2019), https://www.dhs.gov/sites/default/
files/publications/2019_chief_foia_officer_re- port_april_2019.pdf.
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    The DOJ Assessment of Agency Progress in FOIA Administration 
clarifies the problem at DHS.\26\ According to the DOJ report, the 
average number of days to process a FOIA request for expedited 
processing was 13.05, far over other Federal agencies, and earning the 
lowest rating from the DOJ review.\27\ The DHS, as compared with other 
Federal agencies, also received low marks for several other indicators 
of FOIA compliance, as determined by the Department of Justice:
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    \26\ Dept. of Justice, Summary of Agency Chief FOIA Officer Reports 
for 2018 and Assessment of Agency Progress in FOIA Administration with 
OIP Guidance for Further Improvement (June 2018), https://
www.justice.gov/OIP/Reports/2018Summary&Assessment/download#2018.
    \27\ Id at 33.
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   The DHS takes far more time to process simple track FOIA 
        requests (39.11 days) than other Federal agencies;\28\
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    \28\ Id at 35.
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   At a time when other agencies are making progress reducing 
        FOIA backlogs, the DHS backlog for FOIA appeals increased over 
        2018;\29\ and
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    \29\ Id.
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   The agency also received low marks for consultations about 
        the processing of the 10 oldest requests.\30\
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    \30\ Id.
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                 dhs must respond to appeal authorities
    The DHS should respond to appeal authorities when it remands a 
request back down to an agency for additional information. Otherwise, 
the agency's inaction is considered a final agency action where the 
only recourse is for a requester to seek redress through the United 
States District Court. Not all requesters, however, have the resources 
to litigate and DHS's inaction constructively exhausts a requester's 
administrative remedies.
    As an example, EPIC submitted a FOIA request to the DHS Office of 
Intelligence and Analysis.\31\ The DHS improperly closed EPIC's request 
stating that the request did not adequately describe the records 
sought. EPIC appealed the agency decision and the administrative law 
judge remanded the request back to the Office of Intelligence and 
Analysis for further clarification. The DHS failed to provide 
additional information within the deadline and the appeal authority 
issued a letter constituting a final agency action. This is not how the 
FOIA is supposed to work.
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    \31\ Freedom of Info. Act Request from EPIC to Dept. of Homeland 
Sec. (June 14, 2016), http://epic.org/foia/dhs/EPIC-16-06-14-DHS-FOIA-
20160614-Request.pdf.
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                     continued oversight is crucial
    Oversight of DHS's FOIA implementation is critical because watchdog 
groups such as EPIC utilize FOIA to keep the DHS accountable. No 
Federal agency has greater budget authority to develop systems of 
surveillance directed toward U.S. residents.
    We ask that our statement be entered into the hearing record. 
Please contact us if you would like additional information about EPIC's 
FOIA matters. We look forward to working with the subcommittee on open 
Government issues of vital importance to the public.
            Sincerely,
                                            Marc Rotenberg,
                                                    EPIC President.
                                                 Enid Zhou,
                                      EPIC Open Government Counsel.
                                      Caitriona Fitzgerald,
                                              EPIC Policy Director.



                          A P P E N D I X  I I

                              ----------                              

  Questions From Chairman Xochitl Torres Small for James V.M.L. Holzer
    Question 1. During your testimony, you indicated that it would cost 
Immigration and Customs Enforcement (ICE) more money to have U.S. 
Citizenship and Immigration Services (USCIS) process FOIA requests on 
its behalf than if ICE were to process the requests itself. What 
evidence did you rely upon to reach this conclusion?
    Answer. Response was not received at the time of publication.
    Question 2a. Which DHS components have access to and are already 
using technology-assisted review (TAR) to facilitate FOIA processing?
    Answer. Response was not received at the time of publication.
    Question 2b. Are there plans to increase that capacity across the 
Department? If so, how and on what time line?
    Answer. Response was not received at the time of publication.
    Question 2b. How does the Department inform FOIA requesters about 
the use of TAR so that requesters can assess the adequacy of a search?
    Answer. Response was not received at the time of publication.
     Question From Chairman Xochitl Torres Small for Tammy Meckley
    Question. Do you agree with the assessment that it would cost ICE 
more to have USCIS process ICE's FOIA requests? Please explain.
    Answer. Response was not received at the time of publication.
     Questions From Chairman Xochitl Torres Small for Alina M. Semo
    Question 1a. What recommendations do you have for ways in which the 
DHS Privacy Office can better oversee and ensure compliance with FOIA 
across the Department?
    Answer. Response was not received at the time of publication.
    Question 1b. Does the DHS Privacy Office require any additional 
authorities to achieve these goals?
    Answer. Response was not received at the time of publication.
    Question 2. What actions should DHS take to reduce its backlog and 
respond more quickly to complex requests?
    Answer. Response was not received at the time of publication.