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Homeland Security Office must prove FOI Act does not apply

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    NMU         WASHINGTON, D.C.         Freedom of Information    

Homeland Security Office must prove FOI Act does not apply

  • The Office of Homeland Security must prove that its functions are solely advisory and that it is therefore not subject to the Freedom of Information Act.

Jan. 2, 2003 — A federal district judge has ruled that a federal Freedom of Information Act requester can exercise court-ordered discovery against the Office of Homeland Security to determine if it is an agency subject to the FOI Act.

The office, a forerunner of the Department of Homeland Security established by Congress at the end of its 107th session, claimed that while it was an office, its only function was to advise the president. Therefore, it said, it was not subject to the FOI Act and did not have to respond to any FOI requests. Courts have ruled in the past that the FOI Act does not apply to executive branch offices which exist solely to advise and assist the President.

However, Judge Colleen Kollar-Kotelly ruled Dec. 26 that the public documents the office provided the requester did not prove that it only performed those limited functions. She said the office would have to answer questions by the requester and provide additional nonpublic records to prove that it exercised only the limited functions it claimed.

The Electronic Privacy Information Center, a Washington, D.C.-based public interest group, in March filed an FOI Act request with the office for its records on efforts to standardize driver’s licenses across the country, records associated with a planned “trusted flier” program, and records concerning proposals for identifying citizens and visitors through reliance on biometric technology. When the office claimed that it did not need to respond, EPIC sued.

EPIC, a group that tracks government actions that could interfere with personal privacy, sought discovery of records showing the staffing and organizational structure of the office, the manner in which it carried out its responsibilities, and its guidelines to other agencies and officials. It also sought to discover records showing whether other federal agencies and officials had been directed to obtain approval from the office before acting on homeland security issues. What the office actually has done in exercising authority would determine whether it is an agency subject to the FOI Act, EPIC said and the court agreed.

The new Department of Homeland Security is subject to the FOI Act; however, legislation establishing the department stated that critical infrastructure information provided to the department is not subject to the FOI Act.

(EPIC v. Office of Homeland Security; Attorney: David Sobel, Washington, D.C.) RD

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