USCIS Expansion App w Exh
Number of Pages:12
Date Created:March 26, 2013
Date Uploaded to the Library:February 20, 2014
Autogenerated text from PDF
Judicial Watcfi Becai.ise orte above the laiv! March 26, 2013 FOIA/P Appeals Office U.S. Citizenship Immigration Services 150 Space Center Loop, Ste. 500 Lee's Summit, 64064-8010 Dear FOIA Appeals Officer: This letter timely appeals March 15, 2013 denial1 Judicial Watch' January request2 for records regarding the U.S. Citizenship Immigration Services (USCIS) expansion call center hours its National Customer Service Center (NCSC) beginning January 12, 2013. The request, filed pursuant the Freedom Information Act (FOIA), U.S.C. 552, sought, inter alia, "all records concerning, referring, relating USCIS's expansion ofNCSC hours, including [a111 audio, video, .and written communications (including powerpoint slides) regarding the planning and execution the expansion." The time frame contemplated the request was the date which USCIS undertook the current NCSC expansion (the date which was not specified USCIS's announcement the delivery final product) through the date which USCIS began its actual search for records responsive the request. USCIS's search and production fell far short what FOIA requires withholding public records and justifying the decision so, Judicial Watch challenges the determination explained below. Courts have consistently adjudged FOIA search legally adequate where "the agency makes good faith effort conduct search for the requested records, using USCIS's March 15, 2013 denial here attached Exhibit 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 USCIS March 26, 2013 methods which can reasonably expected produce the info1mation requested.11 Cooper U.S. Dep Justice, 2012 U.S. Dist. LEXIS 128715, 11-12 (D.D.C. Sept. 11, 2012)(further citation and intemal quotation marks omitted). that end, "[t]he agency cannot limi its search only one record system there are others that are likely turn the information requested and must pursue any leads responsive records that are both clear and certain." Id. "Ultimately, the adequacy the search judged standard reasonableness and depends, not surprisinglyupon the facts each case." Id. Dearth Production Strongly Suggests Faulty Search Record Locations While the dearth ail agency's production not generally deemed conclusive evidence inadequate FOIA search, the context the present case increases the probative value such paltry response. good case for comparison Miccosukee Tribe Indians qfFla. United States, 516 F.3d 1235, 1252 lth Cir. 2008). Miccosukee, the Environmental Protection Agency (EPA) could not prove beyond material doubt that its search was reasonable following the Tribe's deposition certain employees involved the search. The depositions -in contrast with earlier affidavit the FOIA supervisor-revealed internal policy choice that the agency had unilaterally imposed during the course the search. The policy, choice -unsupported statute, the court held --construed the Tribe's request narrowly despite explicit language the contrary the statute, the weight jurispmdential authority, and the FOIA petition itself. The Tiibe was alerted the agency's scheme virtue the alaimingly small size its production. When search that should have yielded substantial number documents produced mere two and half boxes, inference could drawn that the search was woefully inadequate some way. USCJS Likely Unreasonably Limited Its Search Time well Location agency's "duty under the FOIA conduct search reasonably calculated lUlcover all relevant documents." Ctr.for Biological Diversity ,Office the U.S. Trade Representative, 2011 U.S. App. LEXIS 19197 (9th Cir. Sept. 16, 201l)(citing U.S.C. 552(a)(3)(C)-(D)). "Relevance measured with respect which records were requested." Id. Hence, where. Biological Diversity, agency confined its search the period time during which the most intense discussion topic occurred rather than exploring all records maintained during the full timeframe specified the requester's FOIA, the agency failed meet its probative burden, forcing the court USC March 26, 2013 agree with plaintiff that the agency's search was inherently deficient and unreasonable within the meaning FOIA. Turning the instant case, Judicial Watch's request sought all documents dating onward from the inception the agency's plan expand call center hours. the agency did not reveal when that date was its announcement the expansion, the agency must trusted admit the date such planning sta1ted and begin its search for responsive documents that point. Given the fact that USCIS was mounting new initiative during the relevant period, and that all the FOIA topics requested Judicial Watch match the ordinary criteria which such programs are evaluated, USCIS would hard pressed prove "beyond material doubt" the basis this rate production that honestly searched all likely locations for the full period requested. Location and Pursuit Emergent Leads addition its temporal aspect, each search for responsive records has spatial component. That is, crafting adequate search, FOIA staff must rely its combined, informed judgment develop viable plan for canvassing the most likely location items requested. that end, while "the agency generally need not search every record system, agency cannot limits its search only one record system there are others that are likely turn the infonnation requested." Campbell U.S. Dep Justice, 164 F.3d 20, (D.C. Cir. 1998)(further citation and internal punctuation omitted). Accord, Valencia-Lucena, 180 F.3d 325 (requiring "agencies make more than perfunctory searches and. indeed, follow through obvious leads discover requested documents"). ;" Hence, where, Campbell, agency refuses revise its search light new leads revealed the search itself, the search-for FOIA purposes --is necessarily unreasonable. This because "the court evaluates the reasonableness agency's search based what the agency knew its conclusion rather than what the agency speculated its inception." Campbell, 164 FJd 28. response Judicial Watch's request, USCIS provided two-page email which the agency answered six questions about the expansion from the contractor USCIS March 26, 2013 designated field the calls. The contents this email strongly suggest that the expansion did not occur the basis this email alone. can further deduced that the expansion did not occur spontaneously without any plari:ning direction from leadership either the agency level beyond. That being the case, twopage production woefully inadequate, pointing legally deficient search for responsive records the agency's possession. Additionally, the date the contractor's email being close USCIS's announcement, must the case that the agency did not start its search far enough back capture the planning dialogues that perforce preceded the expansion. light the foregoing, Judicial Watch asks that USCIS compel appropriate personnel correct its initial dete1mination by: Crafting search likely locate all responsive records; Promptly executing that search reasonable manner, including pursuit any logical leads; Releasing all responsive documents or, narrow instances, supplying pruticularized justification for continuing withhold whatever specific portions the agency can establish rue exempt fiom USCIS's overruching duty disclose. Additionally, Judicial Watch anticipates receipt the renewed production electronic format further expense itself accordance with U.S.C. 552 (a)(6)(A)(i) and (a)(4)(A)(viii).3 Thank you advance for yow-thoughtful consideration this appeal. Respectfully submitted, .Page 4of National Records Center P.O. Box 648010 Lee's Summit, 64064-8010 March 15, 2013 Judicial Watch's January 10, 2013 request here attached Exhibit 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 COW2013000023 Lisette Garcia Judicial Watch 425 Third St. SW, STE 800 Washington, 20024 Dear Lisette Garcia: This response your Freedom Information Act/Privacy Act (FOIA/PA) request received this office January 18, 2013 regarding Expansion USCIS Service Center Hours. You have requested, and the component who heads the NCSC has responded below: All training materials provided new NCSC call takers; Response: The pilot uses existing staff; additional call takers are involved. Scripts used call takers are available the USCIS Web site the Electronic Reading Room. Invoices for all additional technology and equipment acquired leased support the expansion; Response: This pilot uses existing resources; additional technology equipment being acquired. Contracts for all additional office space acquired leased accommodate additional workers; This pilot uses existing facilities; additional space being acquired. SF-50s for all personnel associated with the expansion; This expansion hours the Tier level only, which staffed contractor call takers, Federal Employees are affected this expansion. All audio, video, and written communications (including PowerPoint slides) regarding the planning and execution the expansion; The requirement open the weekend USCIS request built into the Tier contracts. The direction open weekends was handled telephonically without written communication. are providing the only email the subject when the USCIS Contracting Office responded some questions from the Tier vendors. (see attached) All records reflecting the total cost the expansion the American taxpayer. Planning did not anticipate any additional cost result the expansion. This expansion for Tier only. The Tier vendors are paid calls taken not the hours worked. dont believe this pilot will result additional calls the NCSC. Our working assumption that the calls handled Saturday would have been made during our weekday hours Saturday hours were not available. However, are mistaken and there are additional expenses, none will borne the American taxpayers. The NCSC totally funded applicant fees paid USCIS. www.uscis.gov COW2013000023 Page Additionally have been provided one email (question which being provided. have completed the review all documents responsive your request and have identified two pages which are responsive your request. Enclosed are one page released its entirety, and one page released part. have reviewed and have determined release all information except those portions that are exempt pursuant U.S.C. 552 (b)(6) the FOIA. All documents provided are the best copies available. Exemption (b)(6) permits the government withhold all information about individuals personnel, medical and similar files where the disclosure such information would constitute clearly unwarranted invasion personal privacy. The types documents and/or information have withheld may consist birth certificates, naturalization certificates, drivers licenses, social security numbers, home addresses, dates birth, various other documents and/or information belonging third party that are considered personal. accordance with Department Homeland Security Regulations C.F.R. 5.4(a)), USCIS uses cut-off date delineate the scope FOIA request treating records created after that date not responsive that request. Therefore, determining which records are responsive your request, included only records the possession this agency 1/28/13, the date began the search for records. The enclosed record consists the best reproducible copies available. Certain pages contain marks that appear blacked-out information. The black marks were made prior our receipt the file and are not information have withheld under the provisions the FOIA PA. you wish appeal this determination, you may write the USCIS FOIA/PA Appeals Office, 150 Space Center Loop, Suite 500, Lee's Summit, 64064-2139, within days the date this letter. Both the letter and the envelope should clearly marked "Freedom Information Act Appeal." The National Records Center does not process petitions, applications any other type benefit under the Immigration and Nationality Act. you have questions wish submit documentation relating matter pending with the bureau, you must address these issues with your nearest District Office. All FOIA/PA related requests, including address changes, must submitted writing and signed the requester. Please include the control number listed above all correspondence with this office. Requests may mailed the FOIA/PA Officer the Box listed the top the letterhead, sent fax (816) 350-5785. You may also submit FOIA/PA related requests our e-mail address firstname.lastname@example.org.