UNROW Human Rights Impact Litigation Clinic's Freedom of Information Act (FOIA) Requests

Executive summary and timeline by Becca Eden, student attorney at American University and member of UNROW Human Rights Impact Litigation Clinic at American University

Executive Summary

Last summer, the UNROW Human Rights Impact Litigation Clinic partnered with Amnesty International USA to discover why reports of detainee abuse by civilian contractors has transpired without investigation or prosecution.

On June 24, 2008, UNROW submitted 28 Freedom of Information Act (FOIA) requests to federal agencies and agency components, including 18 components of Department of Justice (DOJ), seeking any records relating to investigations of civilian contractor involvement in detainee abuse in Iraq and Afghanistan. As of March 9, 2009, one DOJ component, Criminal Division, has recovered two responsive documents but withheld one document in its entirety. UNROW appealed the withholding of that document, but has not received a response to its appeal. Two components, Civil Division and Office of Legal Policy (OLP), have stated that they have found no responsive documents and closed the request. The OLP request closure was appealed and there has been no further communication. UNROW does not contest the closure of the Civil Division Request.

 The remaining components have failed to respond within the statutory guidelines. Due to this failure, UNROW has constructive exhaustion and may commence litigation to compel production of the requested records.

On December 9, 2008, UNROW submitted 36 more FOIA requests regarding violent crimes committed by civilian contractors, interpretation and application of the Military Extraterritorial Jurisdiction Act (MEJA), and contract renewal procedures regarding civilian contractors operating overseas. UNROW submitted eleven of these requests to DOJ components.  

Two components, Executive Office for U.S. Attorneys (EOUSA) and FBI Headquarters, have adversely responded, erroneously requiring UNROW to tailor the request to each component’s specific databases. UNROW has either appealed or is in the process of appealing these responses. One component, Office of the Inspector General (OIG), produced a single responsive document.          

Eight of the requests submitted on December 9, 2008, have not garnered any response from an agency component. Due to this failure to respond, UNROW again has constructive exhaustion and may commence litigation to compel production of the requested records.

After ten months, UNROW has recovered one FedEx airbill receipt and one largely redacted complaint form from its 29 separate FOIA requests to DOJ components.

Timeline of FOIA requests to the Department of Justice (DOJ) Components

24 June 2008
UNROW Clinic faxes and mails Freedom of Information Act (FOIA) requests for records regarding investigations of civilian contractor involvement in detainee abuse in Iraq and Afghanistan to 28 federal agencies and agency components, including 18 components of Department of Justice (DOJ).

25 June 2008
Office of the Inspector General (OIG) acknowledges receipt of the FOIA request. As of March 9, 2009, UNROW has received no further communication from OIG office concerning this request.

7 July 2008
Civil Division states that it cannot process the request without specific identifiers, such as party names.

7 July 2008
Federal Bureau of Investigations (FBI) informs UNROW that the request submitted to the Norfolk Field Office has been referred to FBI Headquarters.

8 July 2008
Executive Office for United States Attorneys (EOUSA) states that the request is being processed.

9 July 2008
Criminal Division acknowledges receipt of the FOIA request.

10 July 2008
Criminal Division suggests that a request be submitted to the National Security Division (NSD), a component to which UNROW had already submitted a request.

11 July 2008
National Security Division acknowledges receipt of the FOIA request. As of March 9, 2009, UNROW has received no further communication from NSD office.

15 July 2008
Office of Information and Privacy (OIP) informs UNROW that it will be unable to comply with the twenty-working-day statutory requirement and that it will be responding on behalf of the Offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Legislative Affairs and Legal Policy.       

22 July 2008
EOUSA acknowledges receipt on behalf of the Office of the United States Attorney of Eastern District of Virginia and states that individual offices do not process FOIA request and EOUSA will respond to the request.

11 August 2008
EOUSA states it will consolidate the two requests it is processing and it will not be able to comply with the statutory time requirements. As of  March 9, 2009, UNROW has received no further communication from EOUSA regarding this request.

20 August 2008 OIP confirms a phone conversation clarifying the records requested via letter.

22 August 2008
OIP sends an interim response on behalf of the above-mentioned components, except for the Office of Legal Policy. The letter states that no responsive records were located at OLP and that the request will be closed.

3 September 2008
Civil Division states it is closing the FOIA request after the request was not tailored to its particular database system.

6 October 2008
Office of Legal Counsel (OLS) states that it has not located any responsive records and informs UNROW of its right to an administrative appeal.

21 October 2008
UNROW Clinic mails a request for reconsideration of the closure of the Office of Legal Policy (OLP) request to Carmen Mallon, Chief of Staff at OIP, and an appeal of the same closure to Janice McLeod, Associate Director of OIP. As of March 9, 2009, UNROW has not received a response to either of these letters.

23 October 2008
Criminal Division states it has located only two responsive documents, including a completely withheld e-mail and an airbill from FedEx.

9 December 2008
UNROW mails and faxes a request to OLP regarding the Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261. As of March 9, 2009, UNROW has received no further communication from OLP.

9 December 2008
UNROW Clinic faxes and mails FOIA requests for records regarding investigations of violent crimes committed by private civilian contractors in Iraq and Afghanistan to 31 federal agencies and agency components, including 11 components of Department of Justice.

16 December 2008
FBI responds that the request “does not contain enough descriptive information to permit a search” of its records.

23 December 2008
Criminal Division acknowledges receipt of the December 9 FOIA request.

23 December 2008
OIG acknowledges receipt of the December 9 FOIA request.

24 December 2008
EOUSA states that the December 9 request is being processed.

26 December 2008
UNROW Clinic mails an appeal regarding the Criminal Division request to OIP. As of March 9, 2009, UNROW has not received a response to this appeal.

6 January 2009
EOUSA states it cannot conduct the search for records requested on December 9 until UNROW specifies a specific EOUSA office and advises UNROW of its right to an administrative appeal.

9 January 2009
UNROW receives an undated letter from FBI Headquarters stating the December 9 request “does not contain enough descriptive information to permit a search” of its records.

15 January 2009
OIG responds to the December 9 FOIA request and includes one responsive document, a partially redacted Complaint Form alleging fraud, waste and abuse against a contractor, filed by one of its contract employees.

7 March 2009
UNROW appeals the closure of the EOUSA and contests the requirement that the request specify an EOUSA office.

9 March 2009
As of this date, UNROW has not received any response or acknowledgement of its December 9 FOIA request from the following components:
— Office of Legal Policy
— Office of Deputy Attorney General
— Office of Associate Attorney General
— Office of Legislative Affairs
— National Security Division
— Office of Legal Counsel
— U.S. Attorney’s Office, Eastern District of Virginia