DHS Tells Records Requester It Can't Find Documents It Posted To Its Own Website

Government agencies large and small, federal and non-federal, are aggressive non-participants in the free flow of information. Laws enacted to force the government to be responsive to records requests have made it possible to obtain documents from agencies, but this can often take the form of long, expensive legal battles.

When not deterring public records requesters with insane fee demands or years of stonewalling, the government plays keepaway with documents by playing the role of insane, cackling villains, casting aside logic and goodwill in equal parts to assure the public remains ill-informed and well-screwed.

Here are just a few highlights from the government's non-goodwill tours:

• The CIA pretends information it handed on the sly to selected journalists has not been "made public"
• The FBI redacts a document that had already been made public by Senator Rand Paul
• A state agency pretends it doesn't know who requested documents in an attempt to deny standing in a records lawsuit
• The DOJ tells Techdirt it can't find a gag order it had already released to another requester
• The FBI tells Jason Leopold it can't release documents it had already released to Techdirt
• The FBI tells a records requester it can't find a document it had already released to another requester six months earlier
• The IRS turns over fully-redacted documents to a requester in the form of password-protected encrypted files... with no password included

It is in this spirit of non-cooperation that we bring you the following, via FOIA warrior Emma Best and MuckRock: if something is always in the last place you look, why not check your own website first?

In late February 2017, the Trump Administration took some of its earliest steps towards implementing a new border wall policy with an executive order and several memos issued by the Department of Homeland Security's leadership. In response to the policy, MuckRock filed a FOIA request for "memos relating to executive orders signed by Donald Trump," including but not limited to memos described in a specific article.

Just under 17 months later, DHS responded with a letter saying that they were unable to find any such memos. Despite these claims, two of the memos which DHS said they were unable to find had already been posted to their website.

As Best points out, this isn't just an embarrassing failure by the DHS's FOIA response team. A couple of easily-avoidable errors is one thing. Ongoing antipathy that results in this sort of under-service is a symptom of a bigger problem.

While DHS' failure to provide copies of already publicly available memos may appear to be an amusing annoyance, their response to the FOIA request highlights the agency's general failing with FOIA. There's no reason to believe that these were the only two DHS memos relating to Trump's executive orders, since no policy can be fully implemented by just two memos. The DHS' failure to find copies of already public documents brings their search process into question for both this particular FOIA request as well as FOIA requests in general.

This is being appealed, with Best making the understated suggestion the DHS's search attempt wasn't very thorough by pointing it to the two memos posted at its own website. But even if the DHS had found the memos under its nose, it's still stiffing requesters by pretending there's nothing else guiding its monumental shift in immigration enforcement priorities. This is bad faith by bad actors who apparently feel it's their duty to keep the public in the dark.