JWs DHS Appeal on FEMA Overpayments
Number of Pages:21
Date Created:June 28, 2012
Date Uploaded to the Library:February 20, 2014
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TRANSMISSION VERIFICATION REPORT 06/28/2012 01:27 .JUDICIAL 1,o.IATCH 2026460190 20264E.51 000G81--1646578 BUSV: BUSV/MO RESPrnSE JudiciaIWatcli 425 Third St., SW, Ste. 800 Wasbiugton> 2.0024 PhotJe: 202"6465] Fax: 20Z6465199 Internet: www.judiofolwa1."Ch.org TIME NAME FAX TEL SER. DATE, TIME 06/28 01:27 FAX NO./NAME 2022544398 DURATIOl--1 00:00:00 PAGE(S) RESULT BUSV MODE STANDARD Fax To: From: Phone: Page$= (including cX,ver page) o.f-fi) 112..-l? Urgent l=or Review Plea$e Comment Please Reply . Judicial Watcli Because one above the law! Security Inspector General's June detennination1 respecting Judicial Watch's request, FOIA-2012-1252 Judicial Watch's May request sought all communications from November 2011, through the date the request respecting the legality recovering improper payments any kind -including overpayments and wrongful payments -disbmsed via FEMA's Emergency Food Shelter Program. the Department Homeland Security Inspector Gcnerars search and production falls far short what FOIA requires withholding public records and justifying the decision so,3 Judicial Watch challenges the adverse dctennination for the reasons that follow. Background The Department Homeland Security (OHS) last month issued its ''High-Dollar (D.C. Cir. 1983)). 425 Third St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442 FAX: (202) 646-5199 Email: info@JudicialWatch.org "www.JudicialWatch.org DHS-OIG Appeal FOIA-2012-125 June 28, 2012 Overpayments Report for the Quarter Ending March 31, 2012. '"' The report stated that Federal Emergency Management Agency (FEMA) overpayments disbursed via its Emergency Food Shelter Program (EFSP) the amount $362,484.63 had been outstanding for 137 days March 31, 2012. The report further stated that collection action was underway with respect the $362,484.63 improperly paid EFSP because FEMA was unclear the legality recovering such funds. May 30, Judicial Watch filed the FOIA identified note above. June the Department Homeland Security's Office oflnspector General (DHS-OIG) denied Judicial Watch's request for fee waiver with respect fulfillment that FOIA, saying that would "speculative" conclude that communications regarding the legality recovering high-value overpayments would any interest the general public. further determined that Judicial Watch was not news-gathering organization for purposes ofDHS regulations despite Judicial Watch's mission obtaining, through FOIA, public records documenting government operations and activities for the purpose ensuring fidelity the rule oflaw through broad dissemination the infonnation contained therein. June Judicial Watch appealed DHS-OIG's June determination the basis HS' own statements regarding the public importance accountability recovering high-dollar overpayments well Judicial Watch's proven ability communicate salient topics such these the widest possible audience.5 The same afternoon, DHS-OIG staffers Nikki Gramian and Kirsten Teal called Judicial Watch explain that, "the OIG required section (3)(f) Executive Order 13520 review the Department's report regarding improper' payments and make recommendations. OIG's role does not include reviewing the legality such improper payments." Judicial Watch, not having asked for any communications regarding "the legality improper payments," referred DHS-OIG staff the language the request and asked that future agency communications reduced writing prevent confusion. Secretary Janet Napolitano, Dep't Homeland Sec., Memo for Council Insp. Gen. for Integrity Efficiency, "Quarterly High-Dollar Overpayments Report January March 2012," May 15, 2012, 1276110646530.shtm. Judicial Watch's June appeal ofDHS-OlG's June fee waiver denial here attached Exhibit email chain memorializing Mmes. Gramian and Teal's phone caJl here attached Exhibit DHS-OIG Appeal FOIA-2012-125 June 28, 2012 June 28, DHS-OIG issued final determination respecting FOIA-2012-125, stating that the agency had located documents responsive Judicial Watch's request, all which were released full. The documents released conjunction with DHSOIG determination comprised only three quarterly reports, without supporting documentation indicating FEMA's methodology for identifying the EFSP overpayments its plans for recouping the amoWlts due. Nor did the release include DHS-OIG's responsive recommendations for recoupment without compromising access and participation among EFSP-eligible beneficiaries. DHS-OIG's June letter also deemed Judicial Watch's fee appeal moot, saying that the production, released, did not meet the threshold for recoupment ofFOIA costs. II. Analysis Secretary Janet Napolitano prefaced the report that prompted Judicial Watch's inquiry with the following statement: This report supports the Department's commitment fulfilling the Executive Order's goals eliminating payment error and waste federal programs and increasing the transparency and public scrutiny significant improper payments. The elimination waste presumably reached recovering whatever improper payments have been made -whether error fraud. that end, compiling the quarterly overpayment report, DHS-OJG collects information from each DHS's components not just tally the dollar amounts and number days debt remains outstanding. Rather, DHS-OIG also asks the Department's components identify the recovery action taken planned with respect outstanding high-dollar overpayments reported the Secretary's previous high-dollar overpayments report. For the quarter ending March 31, 2012, FEMA identified action taken planned recover $362,484.63 improperly paid via EFSP (by then outstanding least 137 days) because FEMA was unclear the legality undertaking collections process that context. Specifically, DHS-OIG's report stated: The Office the Chief Financial Officer and Emergency, Food and Shelter Program staff are researching the legality collections process for Emergency Food and Shelter Program. Awaiting legal opinion from the DHS-OIG Appeal FOIA-2012-125 June 28, 2012 Federal Emergency Management Agency's Office General Council [sic] the collections issue. Just DHS-OIG not expected possess "clairvoyant capabilities" order fulfill FOIA requests7, DHS-OIG cannot presumed have supplied FEMA's excuse for failing discharge its waste reduction duty describe actions taken planned for recovering EFSP overpayments. Indeed, the pertinent provision directs FEMA provide DHS-OIG's Inspector General overpayments repo1t containing: FEMA's methodology for identifying and measuring improper payments via EFSP; FEMA's plans, together with supporting analysis, for meeting the reduction targets for improper payments FEMA's EFSP; and, FEMA's plan, together with supporting analysis, for ensuring that initiatives undertaken pursuant this order not unduly burden access and participation EFSP-eligible beneficiaries. The same order requires DHS-OIG, upon receipt and review ofFEMA's communication above, the following: Assess the level risk associated with the applicable programs; Determine the extent oversight warranted; and, Provide FEMA with recommendations, any, for modifying: FEMA's methodology; FEMA's improper payment reduction plans; or, FEMA's access and patticipation plans respecting EFSP. Hence, the extent that FEMA and DHS-OIG tum arc presumed have discharged their respective legal duties with respect EFSP overpayments mandated the President's order, then communications exist which are directly responsive Judicial Watch's request.9 extension, the extent that DHS-OlG failed locate the See Hudgins IRS, 620 Supp. (D.D.C. 1985). Exec. Order 13520, "Redttcing Improper Payments and Reducing Federal Waste," C.F.R. 13520 (2010). DHS-OIG Appeal FOIA-2012-125 June 28, 2012 responsive documents identified above, such failure identify responsive documents the instant case resulted unlawful withholding. Whlle agency's failme locate responsive documents its possession not always indication inadequate search, DHS-OIG's failure locate responsive doctunents the present instance suggests tmreasonable search for the reasons that follow. Government officials must exercise modicum common sense and good judgment crafting searches and otherwise working timely fulfill FOIA requests. Wheeler Executive Office U.S. Attys., 2008 U.S. Dist. LEXIS 3445 (D.D.C. Jan. 17, 2008). Consequently, agencies may not dismis plainly-stated FOIA request false claims inscrutability. Truitt U.S. Dep State, 897 F.2d 540 (D.C. Cir. 1990)(string cite omitted). Rather, courts this jurisdiction have repeatedly admonished agencies construe FOlA requests liberally. LaCedra Exec. Office for U.S. Attys., 317 F.3d 345, 348 (D.C. Cir. 2003)(fwther citation and internal quotation marks omitted). And, statute, federal agencies must "make reasonable efforts search for [requested] records." U.S.C. 552 (a)(3)(C). For purposes ofFOIA, "the term 'search' means review, manually automated means, agency records for the purpose locating those records which are responsive request." U.S.C. "'552 (a)(3)(D). Thanks the Electronic Freedom oflnformation Act Amendments 1996, the law now "promotes electronic database searches and encourages agencies expend new efforts order comply with the electronic search requirements particular FOIA requests." Schladetsch U.S. Dep Housing Urban Developm 't, 2000 U.S. Dist. LEXIS 22895 (D.D.C. Apr. 2000)(intemal citation omitted). Ultimately, doubts about the adequacy search are resolved favor requester. Negley FBI, 658 Supp. 50, (D.D.C. 2009). the instant case, does not suffice for DHS-OIG say searched two offices those are not the offices charged with receiving and responding FEMA (or the Secretary for FEMA) regarding EFSP overpayments. See, also, Freeman DOJ, 1991 U.S. Dist. LEXIS 19214 (D.D.C. Oct. 16, 1991) (failure find documents known exist deemed unreasonable where search was abandoned after few phone calls). Indeed, DHSOlG's search and resulting production must deemed inadequate unless and until can "demonstrate beyond all material doubt that its seiuch was reasonably calculated uncover all relevant documents.Nation Magazine United States Customs Serv., F.3d 885, 890 (D.C. Cir. 1995). Moreover, cotmtervailing evidence the DHS-OIG Appeal FOIA-2012-125 June 28, 2012 existence certain records, such those expressly required wider Executive Order 13520, undermines the credibility ofDHS-OIG's claims regarding the adequacy its search. See Friends Blackwater US. Dep Interior, 391 115, 121 Supp. (D.D.C. 2005). Additionally, "an agency obliged pursue any clear and certain lead cannot good faith ignore." Cooper US. Dep't Justice, 2004 U.S. App. LEXIS 8135 (D.C. Cir. Apr. 23, 2004)(further citation and internal quotation marks omitted). that end, while ''the agency generally need not search every record system .... agency cannot limit its search only one record system there are others that are likely turn the information requested." Campbell US. Dep't Justice, 164 F.3d 20, (D.C. Cir. 1998)(citing Oglesby US. Dep ofthe Army, 920 F.2d (D.C. Cir. 1990))(intemal quotation marks omitted). the end, the adequacy ofDHS-OIG's search for documents responsive Judicial Watch's request will judged "based what the agency knew its conclusion rather than what the agency speculated its inception." Campbell, 164 F.3d 28. That said, even the two offices allegedly searched were logical places start, they may not have been enough discharge DHS-OIG's FOIA dutyin light what learned consequence the search. Unless FOIA staff clarifa;d for. itself what was sought (this clarity was apparently not place Mmes. Gramian and Teal's June phone call), well identifying agency personnel assigned handle the requested communications, DHS-OIG could not have crafted adequate search because was doomed fail locating responsive documents. See, e.g., Davis. US. Dep Justice, 2007 U.S. Dist. LEXIS 88374 (D.D.C. Dec. 2007) (agency search was "unreasonably limited scope and destined fail" where, even pursuing "three separate avenues inquiry, none them had any likelihood'' success). III. Request for Relief Thus, for all the foregoing reasons and more, Judicial Watch hereby requests that the Inspector General compel appropriate personnel once to: Craft search likely locate all responsive records; Promptly execute that search reasonable manner, including pursuit any logical leads; Conduct segregability analysis order redact only those portions DHS-OIG Appeal ofFOIA-2012-125 .June 28, 2012 responsive documents shown exempt from compulsory disclosure; Redact responsive records manner that indicates the amount material withheld the site the redaction, citing the precise basis for withholding; Release all responsive documents or, narrow instances, supply particularized justification for continuing withhold whatever specific portions the bureau can establish are exempt from the DHSOIG's overarching duty disclose. Additionally, Judicial Watch anticipates receipt the renewed production further expense itself accordance with U.S.C. 552 (a)(6)(A)(i) and (a)(4)(A)(viii).Thank you advance for your thoughtful consideration this appeal. Respectfully, Lisette Garcia, .T.D. Senior Investigator U.S.C. 552 (a)(6)(A)(i) provides for determination FOIA request within days and U.S.C. 552 (a)(4)(A)(viii) provides for the waiver all fees the requested documents are not timely produced. From: Lisette Garcia To: "Gramian, Nikki"; Teal, Kirsten Cc: FOIA OIG Subject: RE: FOIA Req. 2012-125 Acknowledgement Date: Thursday, June 07, 2012 5:44:00 Attachments: FEMA Overpay FOIA.pdf Hi, Ms. Gramian: asked you put your thoughts writing ensure clear communications. Indeed, based your email response memorialization, appears you have misread Judicial Watchs FOIA request, here attached for ease reference. You say below that: the OIG required section (3)(f) Executive Order 13520 only review the Departments report regarding improper payments and make recommendations. those very recommendations that Judicial Watchs FOIA, its terms, seeks. You also state: OIGs role does not include reviewing the legality such improper payments. Judicial Watch has not asked nor does seek records regarding what you term the legality such improper payments. Rather, Judicial Watch requested: All communications respecting the legality recovering improper payments any kind including overpayments and wrongful payments- disbursed via FEMA's Emergency Food Shelter Program. Hence, since FEMAs excuse DHS-OIG for taking action recover improperly disbursed funds over the course several quarters was that was unclear about the legality recovering improper payments, then logical and reasonable believe that there are records this topic DHS-OIGs possession which acquired the course its duties (including compiling the quarterly reports which FEMAs excuse for failing proceed with collection appears). hope this helps the agency proceed with prompt and thorough search. Judicial Watch anticipates timely production all responsive records. Best, Lisette From: Gramian, Nikki [mailto:Nikki.Gramian@oig.dhs.gov] Sent: Thursday, June 07, 2012 4:54 To: Lisette Garcia; Teal, Kirsten Cc: FOIA OIG Subject: RE: FOIA Req. 2012-125 Acknowledgement Thank you Ms. Garcia for the information you memorialize below. The purpose our call was not formally respond your FOIA request; rather, simply wished inform you OIGs roles regarding improper FEMA payments that you would have better understanding the types records maintain, and provide you with background that would give you further insight into our planned response your request. hope was initiate dialog facilitate open discussion your request that would benefit the both us. unfortunate that were not able carry out affable discussion without becoming confrontational. attempted explain, the OIG required section (3)(f) Executive Order 13520 only review the Departments report regarding improper payments and make recommendations. OIGs role does not include reviewing the legality such improper payments. such OIG would not maintain the types records you seek your request (i.e., all communications regarding the legality recovering improper payments any kind including overpayments and wrongful payments disbursed via FEMAs Emergency Food Shelter Program). also wished explain the types records maintain and explain that will produce them you anyway, even though they are not responsive your request. are working compiling the formal response your FOIA request. the meantime, should you have further questions regarding your request feel free contact me. From: Lisette Garcia [mailto:LGarcia@JUDICIALWATCH.ORG] Sent: Thursday, June 07, 2012 2:35 To: Gramian, Nikki; Teal, Kirsten Cc: FOIA OIG Subject: RE: FOIA Req. 2012-125 Acknowledgement Ms. Gramian: This email serves memorialize your phone call this afternoon which you sought explain DHS-IGs role collecting the overpayments that are the subject the attached request for public records. The reason asked you put your thoughts writing that prompt written notice adverse determination regarding the disclosure public records agencys possession statutory minimum under the Freedom Information Act (FOIA), well the Administrative Procedure Act (APA) from which FOIA flows. U.S.C. 552(a)(6)(A)(i) states pertinent part: Each agency. shall determine within days after the receipt any [FOIA] request whether comply with such request and shall immediately notify the person making such request such determination and the reasons therefor, and the right such person appeal the head the agency any adverse determination. U.S.C. 555(e) provides pertinent part: Prompt notice shall given the denial whole part written application, petition, other request interested person made connection with any agency proceeding. Except affirming prior denial when the denial self-explanatory, the notice shall accompanied brief statement the grounds for denial. Apart from the substantive elements expressly addressed within U.S.C. 552, courts have recognized procedural aspect agencys compliance with FOIA which constitutes informal adjudication subject judicial review per terms set forth the Administrative Procedure Act, U.S.C. 706. Reliance Electric Co. Consumer Product Safety Cmsn., 924 F.2d 274, 277 (D.C. Cir. 1991)(citing Chrysler Corp. Brown, 441 U.S. 281, 287, 317-18, Ed. 208, Ct. 1705 (1979); Occidental Petroleum Corp. SEC, 873 F.2d 325 (D.C. Cir. 1989); and, ATT Information-Systems, Inc. General Services Admin., 258 App. D.C. 254, 810 F.2d 1233, 1236 (D.C. Cir. 1987)). Written notice agencys decision and rationale for denying public records request whole part safeguards requesters appeal rights, which must also articulated any such letter from the agency, cited above. Judicial Watch appreciates the agencys timely compliance with all applicable laws. this email have copied Ms. Kirsten Teal, who you stated was also the phone call, along with the DHS-OIGs general FOIA line insure this messages timely receipt. --Lisette From: Teal, Kirsten [mailto:Kirsten.Teal@oig.dhs.gov] Sent: Monday, June 04, 2012 1:14 To: Lisette Garcia Cc: Gramian, Nikki Subject: FOIA Req. 2012-125 Acknowledgement Ms. Garcia, Thank you for your interest the Department Homeland Security (DHS) Office Inspector General (OIG). Attached please find DHS OIGs acknowledgement letter your FOIA request. Thank you. Kirsten Teal U.S. Department Homeland Security Office Inspector General Office Counsel Phone: 202-632-0346 copy the June determination, signed Katherine Gallo, here attached Exhibit copy the May FOIA here attached Exhibit agency claiming have perfonned adequate search must establish that fact beyond all material doubt. Valencia-Lucena U.S. Coast Guard, 180 F.3d 321, 325-326 (D.C. Cir. 1999)(citing Truitt Dep o(State, 897 F.2d 540, 542 (D.C. Cir. 1990) and Weisberg U.S. Dep of.Justice, 705 F.2d 1344, 1351 For purposes fulfilling FOIA-2012-125 its terms, moment that the communications between FEMA and DHS-OIG respecting recoupment EFSP overpayments may have occurred through third parties since agency does not discharge its FOIA obligation sending requester "scavenger hunt" elsewhere for records that are the agency's immediate possession. Tax Analysts U.S. Dep't .Justice, 845 F.2d 1060 (D.C. Cir. 1988).