In response to a request from the Senate Homeland Security and Governmental Affairs Committee, Permanent Subcommittee on Investigations, the Office of Inspector General (OIG) at the Department of Homeland Security (DHS) has conducted a review of DHS’ handling of Freedom of Information Act (FOIA) requests and congressional requests directed to the DHS Office of the Secretary — specifically, the DHS Secretary and Deputy Secretary.
DHS outlines its process for responding to FOIA and congressional requests in internal policy and procedure documents, which include timeliness goals (some of which are based on statutory timelines) and other guidance for searching for, collecting, processing, and producing responsive materials.
Regarding FOIA requests, OIG found that while DHS generally met deadlines for responding to simple FOIA requests, it did not do so for most complex requests. A significant increase in requests received, coupled with resource constraints, limited DHS’ ability to meet production timelines under FOIA, creating a litigation risk for the Department. However, despite the limitations, DHS FOIA response times are better than the averages across the federal government.
If a federal agency fails to respond to a request within the allotted time, the requester may file a lawsuit in federal court. If a requester is unsatisfied with the agency’s initial response to the request, the requester must first file an appeal with the agency before seeking relief in federal court. At DHS, if a requester appeals the initial response, the matter is referred to an Administrative Law Judge from the United States Coast Guard, who adjudicates all such appeals by conducting an independent review of the request and response and issuing a decision to the requester. FOIA requires decisions on appeals be issued within 20 business days.
OIG also found that DHS has not always fully documented its search efforts, making it difficult for the Department to defend the reasonableness of the searches undertaken. With respect to responding to congressional requests, DHS has established a timeliness goal of 15 business days or less. However, we found that, on average, it took DHS nearly twice as long to provide substantive responses to Congress, with some requests going unanswered for up to 450 business days. Further, DHS redacted personal information in its responses to congressional committee chairs even when disclosure of the information was statutorily permissible.
DHS acknowledged FOIA backlogs remain a problem, despite increasing the number of requests processed. In March, the Department initiated its “DHS 2020 – 2023 FOIA Backlog Reduction Plan” to reduce the backlog.
DHS management asserted that OIG’s report did not take into account certain complicating factors that can impact DHS’ response to a congressional inquiry, including the report’s discussion of interim responses and applying redactions.
OIG consequently made some amendments to its report and commended DHS for proactively creating its FOIA backlog reduction plan in March. OIG also acknowledged DHS’ assertion that complicated factors are involved in providing responses to congressional requests.
On July 23 the American Oversight group filed a lawsuit compelling federal agencies to release information about the deaths of migrants detained by federal authorities. American Oversight is seeking the release of records the group has yet to receive from DHS, U.S. Customers and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) despite filing seven FOIA requests (two in March and five in June).