1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

P. Jeffrey Black 7582 Las Vegas Blvd S #450 Las Vegas, NV 89123-1009 (800) 980-2185

Plaintiff Pro Se

~ + ';i,:i.'~ ~ .. "'.,

, ~

'. " j' ie' \ '(

IN THE UNITED STATES DISTRIcft'eoURT< DISTRICT OF NEVADA

P. JEFFREY BLACK,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

Defendant.

* * 2: 1 O-cv-02040-JCM -LRL * Case No. _________ ~

* * * * * * * *

The Freedom of Information Act 5 U.S.C. § 522 et seq.

The Privacy Act of 1974 5 U.S.C. § 522a et seq.

------------------* COMPLAINT FOR INJUNCTIVE RELIEF

1. COMES NOW the plaintiff, appearing pro se, brings this action for injunctive,

1 7 declaratory, monetary, and other appropriate relief, pursuant to the Freedom of Information

18 Act ("FOIA"), 5 U.S.C. § 522 et seq., the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. §

19 522a et seq., and the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, seeking the

20 processing and release of agency records from the U.S. Department of Homeland Security, and

21 its investigative and law enforcement component - Immigration and Customs Enforcement.

22

23

24 2.

Jurisdiction and Venue

This Court has subject matter jurisdiction over this action, and personal

25 jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. § 552(a)(6)(C)(i),

26 and 5 U.S.C. § 552a(g)(1). This federal Court also has jurisdiction over this action pursuant to

27 28 U.S.C. § 1331 and 28 U.S.C. § 1391. Venue is proper in the District of Nevada under both

28 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 552a(g)(5).

1

1

2 3.

Parties

Plaintiff P. Jeffrey Black is a retired U.S. Federal Air Marshal, and a former

3 employee of the United States Department of Homeland Security, and both its investigative

4 and law enforcement components, Immigration and Customs Enforcement ("ICE") and the

5 Transportation Security Administration ("TSA"). Plaintiff is a federal law enforcement

6 whistleblower pursuant to the Whistleblower Protection Act, 5 U.S.C. § 1213, and has given

7 testimony to Congress in regards to violations of federal law, rules, and regulations, aviation

8 security breaches, management abuse of authority, gross mismanagement, and substantial and

9 specific dangers that seriously jeopardized the health and safety of Federal Air Marshals,

10 airline flight crews, and the flying public. Plaintiff is also the current elected president of the

11 Nevada state chapter ofthe Federal Law Enforcement Officers Association (FLEOA).

12 4. Defendant United States Department of Homeland Security ("DHS") is a federal

13 agency established in the Executive Branch of the United States Government, and includes the

14 investigative and law enforcement component agencies ICE and TSA. DHS is a federal

15 agency that maintains a system of records, to include employee personnel files, within the

16 meaning of5 U.S.C. § 551(1) and 5 U.S.C. § 552(f)(1).

17

18

19 5.

Facts

On December 6, 2004, the plaintiff filed a written whistleblower disclosure

20 complaint with the United States Department of Homeland Security, Department of

21 Immigration & Customs Enforcement, Office of Professional Responsibility ("OPR"), in

22 accordance with the Whistleblower Protection Act, 5 U.S.C. § 1213.

23 6. The plaintiffs whistleblower complaint was initially received by Senior Special

24 Agent Thomas J. Ruzevich, who was assigned to the OPR Chicago field office.

25 7. The plaintiffs whistleblower complaint was then forwarded to Special Agent-In-

26 Charge (SAC) James Wong, of the OPR San Diego field office, and the investigation was

27 subsequently directed and overseen by SAC Wong, and personally conducted by Resident

28 Agent-in-Charge (RAC) Kathy Butterfield, also from the OPR San Diego field office.

2

1 8. The plaintiff sent SAC Wong additional whistleblower retaliation complaints

2 throughout the course of the investigation, which documented the continual hostile work

3 environment the plaintiff was subjected to, in retaliation for his whistleblower disclosures.

4 9. The plaintiffs initial whistleblower disclosure complaint of December 6, 2004,

5 alleged that numerous senior managers of the Federal Air Marshal Service ("FAMS"), an

6 investigative and law enforcement component ofICE at that time, who were all employed at

7 the F AMS Las Vegas field office, knowingly and willfully undertook detrimental personnel

8 actions against the plaintiff, in retaliation for his protected whistleblowing disclosures and

9 testimony to Congress, and to the Rouse Judiciary Committee.

10 10. The plaintiffs initial whistleblower complaint also documented Las Vegas field

11 office senior management officials engaged in Prohibited Personnel Practices, through their

12 willful and calculated abuse of authority and gross mismanagement, which subjected the

13 plaintiff to a hostile work environment in violation of 5 U.S.C. § 2302(b )(8).

14

15 Plaintiffs First FOIA and Privacy Act Request for Agency Records

16 11. On October 4,2007, plaintiff filed with the DRS-ICE Information Disclosure

1 7 Unit, his first FOIA request for the release of agency documents. Plaintiffs correspondence

18 was sent directly to the agency's FOIA Officer, Catrina M. Pavlik, in Washington, D.C.

19 12. The plaintiffs notarized request contained his full name, address, phone number,

20 date of birth, place of birth, and social security number, pursuant to 6 C.F.R. § 5.21(d).

21 13. Plaintiffs FOIA request sought any and all official agency records, items,

22 materials, or grouping of information (written or printed), papers, photographs, interview

23 sound recordings or transcripts, logs, any and all letter and memorandum correspondences,

24 Reports of Investigation (ROI), electronic mail messages, sworn affidavits, investigation notes,

25 or any other investigative material, regardless of physical form or characteristics, which were

26 generated or written by the ICE Office of Professional Responsibility (OPR), which

27 specifically and only pertained to the plaintiffs whistleblower disclosure complaints and

28 subsequent investigation. [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(l)].

3

1 Defendant's First Wrongful Delay of Plaintifrs FOIA and Privacy Act Request

2 14. On October 21,2007, the plaintiff received a written correspondence from ICE

3 FOIA Officer Catrina M. Pavlik, dated October 12,2007, informing the plaintiff that she had

4 adversely determined to indefinitely delay the plaintiffs FOIA request, because she was

5 unable to properly identify the plaintiff as the requestor for the records.

6 15. FOIA Officer Catrina Pavlik would like this Court to believe that she was unable

7 to verify the plaintiffs identity, even though the plaintiff was a federal law enforcement officer

8 employed by the defendant at that time, in addition to the fact that the plaintiff had listed on

9 his FOIA request, his full name, address, phone number, date of birth, place of birth, and

10 social security number - all of which would have matched his agency personnel records.

11 16. Additionally, on October 4, 2007, in accordance with DRS rules and regulations

12 set forth in 6 C.F .R. § 5 .21 (d), the plaintiff appeared before a notary public, and after having

13 his identity meticulously verified through the presentation of two forms of government

14 identification cards, and only after affixing his right thumbprint to the notary's official records

15 book, the plaintiff subscribed and executed his original FOIA request for agency records and

16 information, while under oath and under the penalty of perjury.

17

18 Defendant's First Failure to Produce Requested Agency Documents

19 17. On or about November 15, 2007, the plaintiff received a written response from

20 ICE FOIA Officer Catrina M. Pavlik, dated November 7,2007, informing the plaintiff that a

21 search had been conducted of ICE's Office of Professional Responsibly, for all records

22 responsive to the plaintiffs original FOIA request - and the search subsequently produced

23 records contained in a Report of Investigation (ROI) file totaling 575 pages.

24 18. Ms. Pavlik further explained that she had determined that only fourteen pages of

25 the records were releasable to the plaintiff in their entirety, six pages were partially releasable,

26 and the remaining 555 pages would be withheld from the plaintiff in their entirety.

27 19. The remaining 555 pages were withheld from disclosure to the plaintiff for

28 allegedly falling under the Freedom of Information Act exemptions 6 and 7(C).

4

1 Plaintiffs First Administrative Appeal and Request for Expedited Service

2 20. Pursuant to Title 6 of the United States Code of Federal Regulations, Chapter I,

3 Part 5, Section 5.9 and Section 5.25, and in accordance with the United States Department of

4 Homeland Security Management Directive No. 0460.1(4)(G), and in response to the agency's

5 adverse determination to his FOIA request for agency information and records, plaintiff filed

6 an administrative appeal with the DHS Office of the General Counsel on January 15,2008.

7 21. Pursuant to 6 C.F.R § 5.9(b), if the agency's adverse determination is affirmed on

8 appeal, the DHS Associate General Counsel shall respond to appellant in writing, affirming the

9 adverse determination, in whole, or in part, and the written response shall contain a statement

10 of the reasons for the affirmance, including any FOIA exceptions applied.

11 22. If the agency's adverse determination is reversed or modified on appeal, in

12 whole, or in part, the DHS Associate General Counsel shall respond to appellant in writing,

13 and the appellant's original request for information and records shall be reprocessed by the

14 agency in accordance with the appeal decision.

15 23. In violation of6 C.F.R § 5.9(b), plaintiff never received any form of written

16 response or notice from the DHS Associate General Counsel, informing the plaintiff of the

17 defendant's final decision on the administrative appeal.

18 24. Plaintiff never received any further communication from the DHS Office of

19 General Counsel, regarding the administrative appeal that he filed on January 15,2008.

20

21 Plaintiffs Second FOIA and Privacy Act Request for Agency Records

22 25. On December 7,2009, plaintiff filed with the DHS-ICE Information Disclosure

23 Unit, his second FOIA request for the release of agency documents - the exact same

24 information and records that the plaintiff had requested in his first FOIA request. Plaintiffs

25 latest correspondence to the defendant was once again mailed, certified U.S. Mail, directly to

26 the agency's FOIA Officer, Catrina M. Pavlik, in Washington, D.C.

27 26. The plaintiffs notarized request contained his full name, address, phone number,

28 date of birth, place of birth, and social security number, pursuant to 6 C.F.R. § 5.21(d).

5

1 27. Plaintiffs second FOIA request sought any and all official agency records, items,

2 materials, or grouping of information (written or printed), papers, photographs, interview

3 sound recordings or transcripts, logs, any and all letter and memorandum correspondences,

4 Reports of Investigation (ROI), electronic mail messages, sworn affidavits, investigation notes,

5 or any other investigative material, regardless of physical form or characteristics, which were

6 generated or written by the ICE Office of Professional Responsibility (OPR), which

7 specifically and only pertained to the plaintiffs whistleblower disclosure complaints and

8 subsequent investigation. [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(l)].

9

10 Defendant's Second Wrongful Delay of Plaintifrs FOIA and Privacy Act Request

11 28. On or about December 28,2009, the plaintiff received a written correspondence

12 from ICE FOIA Officer Catrina M. Pavlik, dated December 17,2009, informing the plaintiff

13 that the defendant had received his FOIA request, but that since the plaintiffs request "seeks

14 numerous documents that will necessitate a wide-ranging search," the defendant stated it was

15 invoking an extended amount of time to respond to the plaintiffs request.

16 29. On or about February 2, 2010, the plaintiff received a written correspondence

17 from ICE FOIA Officer Catrina M. Pavlik-Keenan, dated January 19,2010, informing the

18 plaintiff that she had determined the search for the plaintiffs requested information and

19 records would require a minimum of 32 hours to complete, with a billable search cost of

2 a $28.00 per hour, for a total cost of $840.00 to be made payable to the defendant.

21 30. Ms. Pavlik-Keenan further indicated that since the total estimated fee to search

22 for the plaintiffs requested information and records exceeded $250.00, the plaintiff was then

23 required to make payment in advance, before the defendant would process the plaintiffs FOIA

24 request, and if the plaintiff refused to send Ms. Pavlik-Keenan the amount of money that she

25 demanded, in ten business days, she would withdrawal the plaintiffs FOIA request herself.

26 31. Because the FOIA required defendant to keep the 575 pages from the plaintiffs

27 first FOIA request, for a minimum of six years before their destruction, the plaintiff believed

28 the defendant's extortion for exorbitant search fees, was both unethical and contrary to law.

6

1 Plaintiffs Second Administrative Appeal and Request for Expedited Service

2 32. Pursuant to Title 6 of the United States Code of Federal Regulations, Chapter I,

3 Part 5, Section 5.9 and Section 5.25, and in accordance with the United States Department of

4 Homeland Security Management Directive No. 0460.1(4)(G), and in response to the agency's

5 unethical and unlawful extortion attempt for exorbitant search fees, plaintiff filed an

6 administrative appeal with the DHS Office of the General Counsel on February 12,2010.

7 33. On March 22,2010, the plaintiff received a written correspondence from DHS

8 Attorney-Advisor Victoria Newhouse, informing the plaintiff that the defendant had received

9 the appeal of the agency's adverse determination (attempted extortion of search fees).

10 34. Ms. Newhouse, on behalf of the Deputy Associate General Counsel for General

11 Law, acknowledged the plaintiffs appeal and assigned it number DHSI0-004.

12 35. Pursuant to 6 C.F.R § 5.9(b), if the agency's adverse determination is affirmed on

13 appeal, the DHS Associate General Counsel shall respond to appellant in writing, affirming the

14 adverse determination, in whole, or in part, and the written response shall contain a statement

15 of the reasons for the affirmance, including any FOIA exceptions applied.

16 36. If the agency's adverse determination is reversed or modified on appeal, in

1 7 whole, or in part, the DHS Associate General Counsel shall respond to appellant in writing,

18 and the appellant's original request for information and records shall be reprocessed by the

19 agency in accordance with the appeal decision.

20 37. On or about August 12, 2010, the plaintiff received a written correspondence

21 from ICE Deputy Chief of the Administrative Law Division, Susan Mathias, informing him

22 that a final decision had been reached on his appeal.

23 38. Pursuant to the final decision, the agency's adverse determination (the extortion

24 of search fees) was REVERSED, all future search fees for plaintiffs FOIA request were to be

25 waived, and the plaintiffs original FOIA request was to be remanded back to the ICE FOIA

2 6 office for "processing and re-tasking to OPR and the appropriate office to obtain the

27 responsive documents." Subsequently, the plaintiff expected to receive forthcoming

28 communication from the ICE FOIA office, updating him on the status of his FOIA request.

7

1 The ICE FOIA Office Has Never Communicated with Plaintiff Since Appeal Decision

2 39. It has now been almost six months since the DRS Office of General Counsel

3 made its reversal final decision on the plaintiffs administrative appeal, yet the plaintiff has

4 never received any communication whatsoever from the ICE FOIA office.

5

6 Plaintiff Has Exhausted All Possible Administrative Remedies

7 40. Pursuant to 6 C.F.R. § 5.9(c), the plaintiff has exhausted all of the applicable

8 administrative remedies with respect to his FOIA and Privacy Act requests for the requested

9 agency information and records.

10

11

12

13

14

15

Count I

Violation of the FOIA and the Privacy Act:

Failure to Comply With Required Statutory Deadlines

and the Wrongful Delay and Withholding of Agency Records

16 41. The plaintiff repeats and alleges paragraphs 1 - 40.

1 7 42. The FOIA establishes a presumption that records in the possession of agencies

18 and departments of the Executive Branch of the United States government, are openly

19 accessible to the people, and as such, the FOIA requires federal agencies to provide the fullest

20 possible disclosure of information to the public.

21 43. It is the stated policy of defendant DRS, to implement the FOIA uniformly and

22 consistently, and to provide maximum allowable disclosure of agency records upon request by

23 any individual. [Department of Rome land Security Management Directive No. 0460.1(6)(A)].

24 44. Since the FOIA provides that any reasonable portions of a record shall be

25 provided to any person requesting such record, the plaintiff believes that the defendant has not

26 lawfully complied with the FOIA, and has in fact for the last four years, participated in an

27 artifice scheme to obstruct and delay the release of the requested information and records.

28 45. The Government should not keep information confidential merely because

8

1 public officials might be embarrassed by disclosure, because errors and failures might be

2 revealed, or because of speculative or abstract fears. Determinations of nondisclosure should

3 never be based on an effort to protect the personal interests of government officials at the

4 expense of subordinate employees - or the public citizens they are supposed to serve.

5 46. In responding to requests under the FOIA, executive branch agencies such as the

6 defendant DRS, should act promptly and in a spirit of cooperation, recognizing that such

7 agencies are in fact servants of the public, and as such, those agencies should adopt a

8 presumption in favor of honest disclosure, in order to establish and maintain their commitment

9 to the principles embodied in the FOIA and the Privacy Act.

10 47. The presumption of disclosure should be applied to all determinations involving

11 the FOIA, which means agencies such as the defendant DRS, should always take affirmative

12 steps to make requested information that is in the public's interest available expeditiously.

13 48. The Privacy Act, on the other hand, specifically allows government employees

14 to seek access to an agency's "system of records" pertaining to themselves, including personnel

15 files held by the agency, that specifically pertain to employees' grievances, whistleblower

16 complaints, disciplinary records, medical records, and Records of Investigations (ROI) - and

1 7 to allow employees to review those records and have copies made thereof.

18 49 . Yet, defendant DRS has continuously and wrongfully delayed, stonewalled, and

19 withheld the requested information and records from both the plaintiff and the public, by

20 failing to comply with the statutory time limits set forth for the processing of requests for

21 information and records under both the FOIA and the Privacy Act.

22 50. Plaintiff is therefore entitled to injunctive and declaratory relief with respect to

23 the release and disclosure of the requested information and records.

24 51. As a direct result of the defendant's numerous unlawful and willful violations of

25 both the FOIA and the Privacy Act, plaintiff has suffered a multitude of adverse and harmful

2 6 effects, including, but not limited to, mental distress, emotional trauma, embarrassment,

27 retaliation, humiliation, and discrimination from agency management officials, which has

28 jeopardized the plaintiffs future financial, beneficial, and employment opportunities.

9

1 Requested Relief

2

3 WHEREFORE, plaintiff P. Jeffrey Black requests that this honorable Court award

4 him the following relief:

5 (1) Declare that the United States Department of Homeland Security violated the

6 provisions of The Freedom ofInformation Act and the Privacy Act of 1974;

7 (2) Order the defendant DHS to immediately process and disclose to the plaintiff all

8 of the requested information and records;

9 (3) Award the plaintiff any actual damages under 5 U.S.C. § 552a(g)(4)(A), the

10 exact amount of which to be determined at trial, but not less than $1,000.00;

11 (4) Award plaintiff any reasonable costs and attorney fees, if any, as is provided for

12

13

in 5 U.S.C. § 552a(g)(3)(B) and/or 5 U.S.C. § 552a(g)(4)(B), 552(a)(4)(E)

and/or 28 U.S.C. § 2412(d);

14 (5) Refer those DRS officials responsible for violating the Privacy Act, for

15 prosecution under 5 U.S.C. § 552a(i)(1);

16 (6) Expedite this action in every way possible pursuant to 28 U.S.C. § 1657(a); and

1 7 (7) Grant such relief as the Court may deem just and proper.

18

19 DATED this 22nd day of November, 2010.

20 Respectfully Submitted,

21

22

23

24

25

26

27

28

10

.NJ.J~P.~ P. U. S. Federal Air Marshal (Ret.) 7582 Las Vegas Blvd S #450 Las Vegas, NY 89123-1009 (800) 980-2185

Plaintiff Pro Se

                       

EXHIBITS

PHILIP 1. BLACK 7582 LAS VEGAS BOULEVARD S #450

LAS VEGAS. NEVADA 89123

October 4, 2007

DELIVERED VIA U.S. CERTIFIED MAIL NO. 7007 1490 0002 8677 0336

Catrina M. Pavlik, ICE-FOIA Officer US Immigration & Customs Enforcement FOIA/PA Information Disclosure Unit 800 North Capitol Street, N.W. 5th Floor, Suite 585 Washington, DC 20536

RE: FOIA & PRIVACY ACT REOUEST FOR INFORMATION

FOIA Request No. 015

Dear Ms. Pavlik,

Please find enclosed my signed and notarized Freedom of Information Act and Privacy Act Request/or Information and Records in accordance with 6 C.ER. § 5.21(d).

If you have any questions regarding this FOIA request, please feel free to call me anytime so that I may address any of your concerns or questions.

I may be reached anytime at: 1-800-980-2185

Sincerely,

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

CONFIDENTIAL - FOR OFFICIAL USE ONLY

FREEDOM OF INFORMATION ACT & PRIVACY ACT REQUEST FOR INFORMATION AND RECORDS

PHILIP JEFFREY BLACK 7582 Las Vegas Blvd S #450 Las Vegas, Nevada 89123 Phone: 980-2185 DOB: POB: S.S.No.

Requester,

UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT Catrina M. Pavlik, ICE - FOIA Officer FOIAIP A Section Information Disclosure Unit 800 North Capitol St. N.W. 5th Floor, Suite 585 Washington, DC 20536

Respondent.

* * * * * * * * * * * * * * * * * * * * * * * *

The Freedom of Information Act Public Law 104-231 5 U.S.C. § 522 et seq.

The Privacy Act of 1974 Public Law 93-579 5 U.S.C. § 522a et seq.

FOIA Request No. 015

Delivered via US Certified Mail No. 7007 1490000286770336

18 REQUEST IS HEREBY MADE, pursuant to the Freedom ofInformation Act, Title 5 of the

19 United States Code, Section 522, [hereafter referred to as "FOIA"], and also the Privacy Act of 1974,

2 0 Title 5 of the United States Code, Section 522( a) [hereafter referred to as the "Privacy Act"], and is

21 made by Philip J. Black, [hereafter referred to as the "Requester"], being a citizen of the United States

22 and of the State of Nevada, and such request is hereby served upon the US Immigration & Customs

2 3 Enforcement, Office of Professional Responsibility [hereafter referred to as the "Respondent"].

2 4 The FOIA establishes a presumption that records in the possession of agencies and departments

25 of the Executive Branch of the United States government, are openly accessible to the people, and as

26 such, the FOIA requires Federal agencies to provide the fullest possible disclosure of information to

27 the public. Whereas, the Privacy Act specifically allows individuals to seek access to an agency's

28 "system of records" pertaining to themselves, and to review the record and have copies made thereof.

1

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 . SPECIFIC REOUEST FOR INFORMA nON AND RECORDS

2 On December 6, 2004, the Requestor filed a written whistleblower complaint with the United

3 States Department of Homeland Security, Department of Immigration & Customs Enforcement (ICE),

4 Office of Professional Responsibility (aPR). The complaint was initially received by Senior Special

5 Agent Thomas J. Ruzevich, who was assigned to the aPR Chicago field office. The complaint was

6 forwarded to Special Agent-In-Charge James Wong, of the aPR San Diego field office. The

7 investigation was subsequently directed by SA Wong and conducted by Resident Agent in Charge

8 Kathy Butterfield and Senior Special Agent Carolyn Novinskey, from the aPR San Diego field office.

9 The Respondent sent SAC Wong numerous additional whistleblower retaliation complaints throughout

1 0 the course of the investigation, which documented the continual hostile work environment.

11 The Respondent's initial complaint alleged that management of the Federal Air Marshal

12 Service (FAMS) employed at the Las Vegas field office (LASFO), knowingly and willfully undertook

13 detrimental personnel actions against the Requestor, in retaliation for his protected whistleblowing

14 disclosures to Congress - and in retaliation for such disclosures, LASFO senior management engaged

15 in Prohibited Personnel Practices through abuse of authority and gross mismanagement, which

16 subjected the Requestor to a hostile work environment in strict violation of5 U.S.C. § 2302(b)(8).

1 7 In accordance with the laws and instructions set forth in both the FOIA and in the Privacy Act,

18 Requester asks that a complete and thorough search be conducted (to be reviewed manually or by

19 automated means), of all filing systems and locations, for all records, items, collections, grouping of

20 information, and "systems of records" that are maintained by the Respondent, and copies thereof,

21 which are specifically and only limited to the following documents and material:

22 1. Any and all official records, items, material, or grouping of information (written or printed),

2 3 papers, photographs, interview sound recordings or transcripts, logs, any and all letter and

24 memorandum correspondences, Reports of Investigation, electronic mail messages, affidavits,

2 5 investigation notes, or any other investigative material, regardless of physical form or characteristics,

26 which were generated or written by the ICE Office of Professional Responsibility (OPR), which

27 specifically and only pertain to the above described investigation of the Respondent's complaints.

28 [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

2

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 2. Any and all official records, items, material, or grouping of information (written or printed),

2 papers, documents, photographs, interview sound recordings and transcripts, logs, any and all letter

3 and memorandum correspondences, Reports of Investigation, electronic mail messages, affidavits,

4 personal investigation notes, or any other investigative material, regardless of physical form or

5 characteristics, which were generated or written by SAC James Wong, and which specifically and

6 only pertain to the above described complaints filed by the Requestor, and which specifically and only

7 pertain to the subsequent investigation that was conducted as a result of the Requestor's complaints.

8 [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

9 3. Any and all official records, items, material, or grouping of information (written or printed),

1 0 papers, documents, photographs, interview sound recordings and transcripts, logs, any and all letter

11 and memorandum correspondences, Reports of Investigation, electronic mail messages, affidavits,

12 personal investigation notes, or any other investigative material, regardless of physical form or

13 characteristics, which were generated or written by RAC Kathy Butterfield;and which specifically

14 and only pertain to the above described complaints filed by the Requestor, and which specifically and

15 only pertain to the investigation that was conducted as a result of the Requestor's complaints.

16 [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

1 7 4. Any and all official records, items, material, or grouping of information (written or printed),

18 papers, documents, photographs, interview sound recordings and transcripts, logs, any and all letter

19 and memorandum correspondences, Reports of Investigation, electronic mail messages, affidavits,

20 personal investigation notes, or any other investigative material, regardless of physical form or

21 characteristics, which were generated or written by SSA Carolyn Novinskey, and which specifically

22 and only pertain to the above described complaints filed by the Requestor, and which specifically and

23 only pertain to the investigation that was conducted as a result of the Requestor's complaints.

24 [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

25

26

27

28

3

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 SEARCH FOR INFORMATION AND RECORDS

3 Requester asks that a complete and thorough search be conducted, manually or by automated

4 means, of all pertinent information, matter, and records contained in "main" files and "see reference"

5 files, including but not limited to numbered and lettered sub files, envelopes, enclosures behind files,

6 "controlled files", administrative files, "closed files", forwarded files, or any files, including agency

7 electronic mail files, contained on a computer or other electronic data processing system, and that the

8 Respondent place any "missing files" pertaining to this Request on a "special locate" status and that

9 the Respondent notifies the Requester that it has done so. [5 U.S.C. § 552(a)(3)].

10

11 EXEMPTION OF REOUESTED DOCUMENTS

12 The Respondent is hereby reminded that all denied, exempted, and or excised information,

13 must be narrowly construed in order that no thing which should be public, may be hidden from the

14 Requester. If any documents are denied in part or in whole, the Requester asks the Respondent to

15 specify which exceptions under 5 U.S.C. § 552(B) is or are claimed for each word, sentence, passage,

16 whole document or file denied, and that the Respondent provide, fully in writing, a complete and

17 factual justification for the deletion of total or partial denial of documents. [5 U.S.C. § 552(a)(2)].

18 The FOIA's exemptions are discretionary, and excluded records may be disclosed by the

19 designated FOIA Officer if deemed appropriate, except where disclosure is otherwise prohibited by

20 law. Contrary to the instructions issued by the U.S. Department of Justice on October 12,2001, the

21 standard should not be to allow the withholding of information and records whenever there is merely a

22 "sound legal basis" for doing so - an erroneous standard set in strict violation of the FOIA.

2 3 If any of the herein requested information, material, or records must be excised in accordance

24 with 5 U.S.c. § 552(b), the Requester asks the Respondent to "black out" the material rather than to

25 just "white out" or "cut out" the excised parts, and if feasible, the extent of the deletion shall be

26 indicated at the place in the record where the deletion was made. [5 U.S.C. § 552(a)(2)]. Requester

2 7 expects that any remaining segregable nonexempt portions of any requested information or records

28 will be released in a timely manner in accordance with the FOIA. [5 U.S.C. § 522(a)(6)(F)].

4

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 SEARCH AND DUPLICATION FEES

3 The Freedom of Information Act - As amended in 1986, the FOIA drastically reduced or

4 eliminated entirely, the cost of small noncommercial requests for information and records released

5 pursuant to the FOIA. Fees shall be limited to reasonable standard charges for document searches and

6 duplication. [5 U.S.C. § 522(a)(4)(A)(ii)(III)]. In addition, fees shall be waived or drastically reduced,

7 "if disclosure of the information and records is in the public interest, because it is likely to contribute

8 significantly to public understanding of the operations or activities of the government, and is not

9 primarily in the commercial interest of the Requestor". [5 U.S.C. § 522(a)(4)(A)(iii)]. Any Advanced

10 payment of fees is not allowed under the FOIA, unless the requestor has previously failed to timely

11 pay required fees - which is not the case in this matter. [5 U.S.C. § 522(a)( 4)(A)(v)].

12 The Privacy Act - Fees may only be charged for the cost of the duplication of information and

13 records released pursuant to the Privacy Act. No fees may be charged for thetime it takes to search

14 for any records, or for the time it takes to review the records to determine if any exceptions apply. In

15 most instances, agencies will not charge fees for making a copy of a Privacy Act file, especially when

16 the file is small in size. Any agency has the authority to waive all fees for information and records

1 7 disclosed under the Privacy Act. [5 U.S.C. § 552a(t)(5)].

18

19 REOUEST FOR WAIVER OF ALL FEES

2 0 Any time retaliation occurs against a federal employee whistleblower who comes forward and

21 reports abuse of authority, gross mismanagement, waste fraud and abuse, and or prohibited personnel

22 practices, it usually hinders any chance of accountability against the wrongdoers, and inevitably

2 3 damages the reputation and career of the reporting employee.

24 Government assets that are redirected against the federal employee whistleblower will

25 subsequently be both costly and unproductive. Agency supervisors, mid-level managers, and senior

26 executives who knowingly cover-up and conceal prohibited personnel practices and or criminal

27 activity, ultimately divert invaluable resources and assets away from law enforcement and intelligence

28 gathering capabilities - which indisputably jeopardizes the safety and security of our country.

5

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 Additionally, and most importantly, federal employees subjected to whistleblower retaliation

2 are eventually silenced and gagged out of fear of losing their jobs or security clearances. Their silence

3 inhibits Congress from successfully exercising its oversight responsibilities by cutting off the flow of

4 information to oversight committees and investigative government agencies. By lawfully obtaining

5 the herein requested information and records, in accordance with the FOIA and the Privacy Act, the

6 Requester seeks to prevent any such obstruction of the flow of documents (the herein requested

7 information and records) to any Congressional oversight or government agency that currently has

8 jurisdiction investigating Requestor's whistleblower complaints of retaliation.

9 All information and records obtained through this Request will be given to a non-profit

1 0 government watchdog organization, and to numerous federal government agencies, in order to assist

11 them in their current ongoing whistleblower retaliation investigations, in connection with complaints

12 filed by the Requestor - to include but not limited to the Project on Government Oversight (POGO),

13 the U.S. Office of Special Council (OSC), the U.S. Office ofInspector Generals (OIG), the U.S. Equal

14 Employment Opportunity Commission (EEOC), the Office of Internal Affairs of the Transportation

15 Security Administration (TSA-OIA), and the Chief Counsel of Oversight and Investigations of the

16 House Judiciary Committee, in the United States House of Representatives.

1 7 A reasonable person should conclude without a doubt, that the information and records being

18 sought are both in the public's interest and safety, since the documents obtained might be given to a

19 Congressional oversight committee, numerous government investigative agencies, and lastly a non-

2 0 profit government oversight organization - information and records that will contribute significantly

21 to the public's understanding of the operations and activities of their government. The public has a

22 right to know when there is a lack of accountability in their government that embodies and insulates

2 3 both malfeasance and the coordinated retaliation of federal government whistleblowers.

24 THEREFORE, the Requestor hereby seeks a waiver of any and all fees pursuant to both the

25 FOIA and the Privacy Act, for the reasonable and standard direct costs of the review, search, and

2 6 duplication of the herein requested information, records, and documents, notwithstanding the first two

2 7 hours of search time and the first one hundred pages of duplication already exempted from fees in

28 accordance with the FOIA. [5 U.S.C. § 522(a)(4)(A)(iv)(II)].

6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 NOTICE OF REOUESTOR'S INTENT IF FEDERAL LAWS ARE VIOLATED

3 The Respondent should take notice that the Requester is prepared to pursue whatever legal

4 remedy is necessary to obtain access to the requested records and material. Any willful violation of

5 the FOIA or the Privacy Act, including but not limited to, the failure of the Respondent to respond to

6 the Requester in a timely matter pursuant to the FOIA, the improper withholding of records which are

7 not exempted by the FOIA or the Privacy Act, or the unlawful destruction of any requested

8 documents, will result in the Requester immediately filing a Complaint for Injunctive Relief in the

9 United States District Court for the Southern District of Nevada, in order to compel the Respondent to

10 produce and turn over all requested documents to the Requestor.

11

12

13

14

15

16

17

I respectfully ask for this,

18 STATE OF NEVADA

19 COUNTY OF CLARK, to-wit:

20 SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and for the county and

21 state aforesaid above, this 4th day of October, 2007, that PHILIP J. BLACK, appeared before me

22 and executed the above FOIA Requestfor Information and Records.

23

24

25

26

27

28

No Public

My Commission Expires on: F.e-b. 'OJ ~O I \

7

•

It B. RAMIREZ Notary Public State of Nevada

No. 03·805.44.1 My C1ppt. expo Feb. 5,2011

SEAL

Philip Black

7582 Las Vegas Boulevard, #450

Las Vegas, NY 89123

Dear Mr. Black:

October 12,2007

U.S. Department of Homeland Security

Washington, DC 20536

u.s. Immigration and Customs Enforcement

This acknowledges receipt of your October 4,2007, Freedom of Information Act (FOIA) request to the Immigration and Customs Enforcement (lCE), for 1) any and all records, items, materials written by ICE Office of Professional Responsibility (OPR) pertaining to an investigation involving you; 2) any and all records pertaining to reports of investigation, affidavits, personal investigation notes, etc., pertaining to SAC James Wong; 3) any and all records pertaining to reports of investigation, affidavits, personal investigation notes, etc., pertaining to RAC Kathy Butterfield; 4) any and all records pertaining to reports of investigation, affidavits, personal investigation notes, etc., pertaining to SSA Carolyn Novinskey. Your request was received in this office on October 12,2007.

Due to the increasing number ofFOIA requests received by this office, we may encounter some delay in processing your request. Per Section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, the Department processes FOIA requests according to their order of receipt. Although DHS' goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10-day extension of this time period. As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request, as allowed by Title 5 U.S.C. § 552(a)(6)(B). If you care to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner; however, there are currently 283 open requests ahead of yours.

Provisions of the Act allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS Interim FOIA regulations as they apply to non-commercial requesters. As a non-commercial requester you will be charged 10-cents a page for duplication, although the first 100 pages are free, as are the first two hours of search time, after which you will pay the quarter-hour rate ($4.00, $7.00, $20.25) of the searcher. We will construe the submission of your request as an agreement to pay up to $25.00. You will be contacted before any further fees are accrued.

We have queried the appropriate program offices within ICE for responsive records. If any responsive records are located, they will be reviewed for detemlination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.

Your request has been assigned reference number 2008FOIA140. Please refer to this identifier in any future correspondence. You may contact this offIce at (202) 732-0300 or 1-866-633-1182.

.. JJ .2ina M. Pavlik­t)6 .......... 0IA Officer

Philip Black

7582 Las Vegas Boulevard, #450 Las Vegas, NV 89123

Re: 2008FOIA140

Dear Mr. Black:

October 12, 2007

U.S. Department of Homeland Security

Washington, DC 20536

u.s. Immigration and Customs Enforcement

This acknowledges receipt of your Freedom ofInformation ActlPrivacy (FOIAlPA) request

to the Department of Homeland Security (DHS), dated October 4,2007, and seeking 1) any and all records, items, materials written by ICE Office of Professional Responsibility (OPR) pertaining to

an investigation involving you; 2) any and all records pertaining to reports of investigation,

affidavits, personal investigation notes, etc., pertaining to SAC James Wong; 3) any and all

records pertaining to reports of investigation, affidavits, personal investigation notes, etc., pettaining to RAC Kathy Butterfield; 4) any and all records pertaining to reports of investigation,

affidavits, personal investigation notes, etc., pertaining to SSA Carolyn Novinskey. Your request

was received in this office on October 12,2007.

An individual's request for information pertaining to himlher is processed under both the FOIA

and the P A to afford maximum access to records. Because you have asked for copies of records

about yourself, we must verify your identity to ensure that your personal information is not released to anyone other than you. The DHS regulations, 6 CFR Part 5 § 5.21(d), require verification of your identity, including your full name, current address and date and place of

birth. In addition, your request must be made in writing, must contain your signature, and should either be notarized or contain a statement made under penalty of perjury as permitted by 28

U.S.C. 1746. Because you have not provided this documentation, your request is not a proper

FOIAIP A request, and we are unable to initiate searching for responsive records.

F or your convenience, I have attached a Certification of Identity form that can be used to satisfy

the requirements of a perfected FOIAIP A request, as stated in the second paragraph of this letter.

You must complete this form and return it to our office before we can initiate a search for records. If we do not receive the completed form within 30 business days from the date of this

letter~ we will assume that you no longer require the information requested, and your request will

be administratively closed.

This is not a denial of your request. Upon receipt of a perfected request, you will be advised as

to the status of your request.

If you have any questions or would like to discuss this matter, please feel free to contact this office at (202) 732-0300 or 1-866-633-1182 and refer to 2008FOIA140.

I_~trina M. Pavlik-Keenan {} U , FOIA Officer

Form Approved OMB No. 1600-XX

u.s. DEPARTMENT OF HOMELAND SECURITY

CERTIFICATION OF IDENTITY

Privacy Act Statement: In accordance with 6 CFR Section 5.21(d) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974, 5 U. S. C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U. S. Department of Homeland Security systems of records are not wrongfully disclosed by the Department. Failure to furnish this information will result in no action being taken on the request. False information on this form may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and/or 5 U.S.c. 552a (i)(3).

Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to Administrative Services, U. S. Department of Homeland Security, Washington, DC 20528 and the Office of Inforrmation and Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (1600-XX), Washington, DC 20503.

Full Name~Reques~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~_

Citizenship Status2 _~~~~~~~~~~~_Social Security Number3~~~~~~~~~~~~_

Current Address,_~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~_

Date of Birth ~ _____________ Place of Birth ~ _______________ _

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that I am the person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of 5 U.S.C. 552a(i)(3) by a fine of not more than $5,000.

Signature4 Date

OPTIONAL: Authorization to Release Information to Another Person

This form is to be completed by a requester who is authorizing information relating to himself or herself to be released to another person. Further, pursuant to 5 U. S. C. Section 552a(b), I authorize the U. S. Department of

Homeland Security to release any and all information relating to me to :

Print or Type Name

IName of the individual who is the subject of the record sought.

21ndividual submitting a request under the Privacy Act of 1974 must be either "a citizen of the United States or an Alien lawfully admitted for permanent residence,"pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as Freedom of Information Act requests pursuant to 5 U.S.C. 552, rather than Privacy Act requests, for individuals who are not United States citizens or aliens lawfully admitted to permanent residence.

1Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the identification of records relating to you. Without your social security number, the Department may be unable to locate any or all records pertaining to you.

4 Signature of individual who is subject of the record sought.

DHS Form 500-5 (9-03)

Mr. Philip Black 7582 Las Vegas Blvd., #450 Las Vegas, NV 89123

Re: 08-FOIA-140

Dear Mr. Black:

November 7, 2007

U.S. Department of Homeland Security 425 I Street, NW Washington, DC 20536

u.s. Immigration and Customs Enforcement

This is the final response to your Freedom of Information Act (FOIA) request to Immigration and Customs Enforcement (ICE), dated October 4,2007 and received by this office on October 12, 2007. You are seeking documents related to a December 6, 2004 written whistleblower complaint you filed. (Please see enclosed copy of original request)

A search of the Office of Professional Responsibility for documents responsive to your request produced a total of 575 pages. Of the pages, I have determined that 14 pages of the records are releasable in their entirety, six pages are partially releasable, and 555 pages are withheld in their entirety pursuant to Title 5 U.S.C. § 552 (b)(6) and (b)(7)(C).

Five hundred and fifty five pages withheld in full as described below.

FOIA Exemption 6 exempts from disclosure personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy. This requires a balancing of the public's right to disclosure against the individual's right privacy. [The types of documents and/or information that we have withheld may consist of birth certificates, naturalization certificates, driver license, social security numbers, home addresses, dates of birth, or various other documents and/or information belonging to a third party that are considered personal.] The privacy interests of the individuals in the records you have requested outweigh any minimal public interest in disclosure of the information. Any private interest you may have in that information does not factor into the aforementioned balancing test.

Exemption 7(C) protects records or information compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. This exemption takes particular note of the strong interests of individuals, whether they are suspects,

www.ice.gov

witnesses, or investigators, in not being unwarrantably associated with alleged criminal activity. That interest extends to persons who are not only the subjects of the investigation, but those who may have their privacy invaded by having their identities and information about them revealed in connection with an investigation. Based upon the traditional recognition of strong privacy interest in law enforcement records, categorical withholding of information that identifies third parties in law enforcement records is ordinarily appropriate. As such, I have determined that the privacy interest in the identities of individuals in the records you have requested clearly outweigh any minimal public interest in disclosure of the information. Please note that any private interest you may have in that information does not factor into this determination. [The types of documents and/or information that we have withheld could consist of names, addresses, identification numbers, telephone numbers, or various other documents that are considered personal.}

Enclosed are six pages with certain information withheld as described below.

FOIA Exemption 6 exempts from disclosure personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy. This requires a balancing of the public's right to disclosure against the individual's right privacy. [The types of documents and/or information that we have withheld may consist of birth certificates, naturalization certificates, driver license, social security numbers, home addresses, dates of birth, or various other documents and/or information belonging to a third party that are considered personal.} The privacy interests of the individuals in the records you have requested outweigh any minimal public interest in disclosure of the information. Any private interest you may have in that information does not factor into the aforementioned balancing test.

Exemption 7(C) protects records or information compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. This exemption takes particular note of the strong interests of individuals, whether they are suspects, witnesses, or investigators, in not being unwarrantably associated with alleged criminal activity. That interest extends to persons who are not only the subjects of the investigation, but those who may have their privacy invaded by having their identities and information about them revealed in connection with an investigation. Based upon the traditional recognition of strong privacy interest in law enforcement records, categorical withholding of information that identifies third parties in law enforcement records is ordinarily appropriate. As such, I have determined that the privacy interest in the identities of individuals in the records you have requested clearly outweigh any minimal public interest in disclosure of the information. Please note that any private interest you may have in that information does not factor into this determination. [The types of documents and/or information that we have withheld could consist of names, addresses, identification numbers, telephone numbers, or various other documents that are considered persona!.}

You have a right to appeal the above withholding determination. Should you wish to do so, you must send your appeal and a copy of this letter, within 60 days of the date of this letter, to: Associate General Counsel (General Law), U.S. Department of Romeland Security, Washington, D.C. 20528, following the procedures outlined in the DRS regulations at 6 C.F.R. § 5.9. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DRS regulations are available at www.dhs.gov/foia.

www.ice.gov

Provisions of the FOIA and the Privacy Act allow us to recover part of the cost of complying with your request. In this instance, because the cost is below the $14 minimum, there is no charge. 6 CFR § 5.1 1 (d)(4).

If you need to contact our office again about this matter, please refer to 08-FOIA-140. This office can be reached at (202) 732-0300.

eka~ Catrina M. Pavlik-Keenan FOIA Officer

Enclosure(s): Original FOIA Request 20 pages of Responsive Documents

www.ice.gov

PHILIP J. BLACK 7582 LAS VEGAS BLVD S #450

LAS VEGAS, NEVADA 89123

January 15,2008

DELIVERED VIA U.S. CERTIFIED MAIL NO. 70070220000251680437

General Counsel Office of the General Counsel Department of Homeland Security Washington, DC 20528

RE: NOTICE OF ADMINISTRATIVE APPEAL

Case No. 0 8 - F 0 I A-I 4 0

Dear General Counsel,

On October 5, 2007, I filed with the FOIA office of the Immigration and Customs Enforcement, a Freedom of Information Act and Privacy Act Request for Information and Records.

A total of 555 pages found specifically relating to my request are currently being unnecessarily delayed and denied contrary to federal law.

In response, please find attached my signed and notarized Notice of Administrative Appeal, which I am filing in accordance with 6 C.ER. §§ 5.9(a) and 5.25(a).

If you have any questions regarding this Appeal, please feel free to call me anytime so that I may address any of your concerns or questions.

I may be reached at: (800) 980-2185

Sincerely,

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

CONFIDENTIAL - FOR OFFICIAL USE ONLY

FREEDOM OF INFORMATION ACT & PRIVACY ACT REQUEST FOR INFORMATION AND RECORDS

PIDLIP JEFFREY BLACK 7582 Las Vegas Blvd S #450 Las Vegas, Nevada 89123-1009 Phone: 980-2185 DOB: POB: S.S.

Appellant,

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT Catrina M. Pavlik, ICE-FOIA Officer FOIAIP A Section Information Disclosure Unit 800 North Capital st. N.W. 5th Floor, Suite 585 Washington, D.C. 20536

Respondent

* * * * * * * * * * * * * * * * * * * * * * * * *

The Freedom of Information Act Public Law 104-231 5 U.S.C. § 522 et seq.

The Privacy Act of 1974 Public Law 93-579 5 U.S.C. § 522a et seq.

Homeland Security Act Public Law 107-296 6 C.F.R. Part 5 et seq.

Case No. 08-FOIA-140

NOTICE OF APPEAL

18 JURISDICTION

19 ADMINISTRATIVE APPEAL IS HEREBY MADE, by Philip Jeffrey Black, [hereafter

20 referred to as the "Appellant"], being a citizen of the United States and of the State of Nevada, and

21 who is a federal employee of the Transportation Security Administration, United States Department of

22 Homeland Security, pursuant to the Freedom of Information Act, Title 5 of the United States Code,

23 Section 522, [hereafter referred to as the "FOIA"], and the Privacy Act of 1974, Title 5 of the United

2 4 States Code, Section 522(a) [hereafter referred to as "The Privacy Act"], and Title 6 of the United

25 States Code of Federal Regulations, Chapter I, Part 5, Section 5.9 and Section 5.25, [hereafter

26 referred to as the "DHS Rules and Regulations"], and such administrative appeal is hereby served upon

27 the General Counsel, Department of Homeland Security, Office of the General Counsel, Washington,

28 DC 20528. [6 C.F.R. §§ 5.9(a) and 5.25(a); DHS MD No. 0460.1(4)(G)].

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 FOIA AND THE PRIVACY ACT

3 The FOIA establishes a presumption that records in the possession of agencies and departments

4 of the Executive Branch of the United States government, are openly accessible to the people, and as

5 such, the FOIA requires federal agencies to provide the fullest possible disclosure of information to

6 the public. Whereas, The Privacy Act specifically allows individuals to seek access to an agency's

7 "system of records" pertaining to themselves, including personnel and medical records held by the

8 agency, and to review the records and have copies made thereof.

9 If any requestor filing for information or records under the FOIA or The Privacy Act, is

10 dissatisfied in any way with afederal government agency's response, the requestor may then submit

11 to the General Counsel (General Law) of the Department of Homeland Security, an administrative

12 appeal, in response to any adverse determination which denies or delays in any respect, the disclosure

13 of information or records requested under the FOIA and or any records on oneself sought under The

14 Privacy Act. [5 U.S.C. § 552(6)(A)(ii), 6 C.F.R. §§ 5.9(a) and 5.25(a)].

15

16 STATEMENT OF FACTS

17 On October 4,2007, the Appellant, in accordance with the DHS Rules and Regulations,

18 appeared before notary public R. B. Ramirez, and after having his identity meticulously verified

19 through the presentation of two forms of government identification cards, and only after affixing his

20 right thumbprint to the notary's official records book, the Appellant subscribed and executed his

21 original Request for Information and Records while under oath and under the penalty of perjury.

22 A copy of this document is attached herein as EXHIBIT A.

23 On October 5, 2007, the Appellant mailed to the Respondent a US Postal Service Priority Mail

24 envelope containing the signed and notarized Request for Information and Records, certified with

25 return receipt No. 7007 1490 0002 8677 0336. A copy of this priority mail envelope is attached herein

26 as EXHIBIT B. According to the Postal Service return receipt, the envelope arrived to the

27 Respondent on October 12,2007, and was signed for at 8:21 a.m. A copy of this signed US Postal

28 Service return receipt is attached herein as EXHIBIT C.

2

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 DENIAL OF INFORMA nON AND RECORDS

2 On October 21, 2007, the Appellant received a response to his Request for Information and

3 Records, from Catrina M. Pavlik, the ICE FOIA Officer. In this letter, Ms. Pavlik informed the

4 Appellant that she had in fact received the Request for Information and Records and that she had

5 queried the appropriate offices within ICE for responsive records. A copy of this letter is attached

6 herein as EXHIBIT D. Ironically, on the same day, October 21,2007, the Appellant also received a

7 second correspondence from Ms. Pavlik, informing the Appellant that she had adversely determined

8 to deny the Appellant's Requestfor Information and Records, until at which time the Appellant's

9 identity could be verified. A copy of this letter is attached herein as EXHIBIT E.

10 Ms. Pavlik stated in this letter:

11

12 "Your request must be made in writing, must contain your signature,

13 and should either be notarized or contain a statement made under

14 penalty of perjury as permitted by 28 U.S. C. 1746. Because you have

15 not provided this documentation, your request is not a proper FOWPA

16 request, and we are unable to initiate searchingfor responsive records. "

17

18 In accordance with 6 C.F.R. § 5.22(b) and 5.23(c), Ms. Pavlik thereby adversely determined to

19 delay, and deny the Appellant's Request for Information and Records solely based on the [erroneous]

20 allegation that the Appellant's identity could not be verified in accordance with DHS Rules and

21 Regulations. The Respondent did however instruct the Appellant on how to remedy this problem

22 by stating in the letter as follows:

23

24

25

26

27

28

"For your convenience, I have attached a Certificate of Identity

form that can be used to satisfy the requirements of a perfocted

FOWPA request, as stated in the second paragraph of this letter.

You must complete this form and return it to our office before we

can initiate a search for records. "

3

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 The Respondent supplied to the Appellant in the same letter, a fonn with a signature line

2 entitled "Certification of Identity" verifying his identity, that would in essence bind the Appellant to

3 penalties of perjury in accordance with 18 U.S.C. § 1001 - but the declaration would be unsworn

4 and not under oath.

5 In 1976, Congress added Section 1746 to allow for certain unsworn declarations to be made by

6 individuals, but who would still be subject to the penalties of perjury. Section 1746 declarations are

7 therefore prosecutable as perjury, even though the law does not require the individual's declaration to

8 be sworn. United States v. Gomez-Vigil, 929 F .2d 254,257 (6th Cir. 1991).

9 However, case precedents questions the validity and authentication of unsworn section 1746

10 declarations, which are now becoming more scrutinized by the courts. The United States Court of

11 Appeals for the Ninth Circuit overturned a criminal conviction pursuant to 18 U .S.C. § 1623( c),

12 because a section 1746 statement submitted to the court, as evidence in a criminal prosecution, was

13 not sworn and taken under oath. United States v. Jaramillo, 69 F.3d 388, 390 .. 91 (9th Cir. 1995).

14 Fortunately, while writing Title 6, Part 5 of the Code of Federal Regulations, Congress

15 understood the importance of a sworn declaration in the process of determining and verifying an

16 individual's identity for FOIA and Privacy Act requests.

17 Section 5.21(d) specifically states:

18

19

20

21

22

23

"You must sign your request and your signature must either

be notarized, or submitted by you under 28 Us.c. § 1746,

a law that permits statements to be made under the penalty of

perjury as a substitute for notarization". [emphasis added].

24 There can be no doubt that the intent and direction of 6 C.F.R. § 5.21(d), is to require

25 individuals seeking information about themselves through the FOIA and The Privacy Act process, to

2 6 submit a sworn and notarized declaration as part of the identity verification process. In the rare

27 occasion that a Appellant for information and records does not have immediate access to a notary

28 public (e.g. incarcerated persons), the statute allows for Appellants to submit a section 1746

4

•

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 declaration "as a substitute for notarization". Therefore, the intent of section 5 .21 (d) is to allow the

2 submission of an unsworn and unnotarized section 1746 declaration as an exception - not as the rule.

3 Unfortunately, somebody forgot to inform the FOIA office of the Immigration and Customs

4 Enforcement of this important legal requirement. It is incomprehensible that the Respondent has

5 blatantly ignored the Appellant's sworn and notarized Requestfor Information and Records, but has

6 instead demanded that the Appellant submit his signature on an unsworn and unnotarized section

7 1746 declaration form, before it will process the Appellant's request for records.

8 The Appellant has been unable to locate any other jurisdiction in the United States, any federal

9 law, or any case precedent, which requires or prefers the submission of an unsworn and unnotarized

1 0 declaration, over the submission of a declaration that has been notarized and executed under oath.

11 The Respondent has stated that it is in fact relying upon 6 C.F.R. § 5.21(d) as its foundation for

12 delaying and denying the Appellant's request - but has the Respondent actually read that particular

13 statute, or been properly trained in all the requirements set forth in 6 C.F .R., ·Part 5 et seq.?

14 The Appellant cannot reasonably accept the idea that Catrina M. Pavlik, the FOIA officer of

15 the Immigration and Customs Enforcement, has not been previously instructed and briefed on all the

16 requirements set forth in 6 C.F.R., Part 5 et seq. - which if true, would be an egregious case of

1 7 malfeasance and gross mismanagement.

18 Therefore, the Appellant has no other choice but to believe the Respondent's blatant disregard

19 for federal law has been both intentional and willful, and is part of an artifice scheme to deny the

20 Appellant the information and records he has properly requested.

21 Even if one was to accept, for argument's sake, that the Respondent's denial of information and

22 records to the Appellant was an "unintentional oversight" within the identity verification process, the

23 Respondent would still have to explain its actions for also blatantly ignoring the Appellant's

2 4 voluntary efforts to ensure an additional identification procedure and checkpoint was included in his

25 request.

26 Neither the FOIA, The Privacy, or the DRS Rules and Regulations require that a Appellant

2 7 submit their social security number as part of the verification of identify process, but nevertheless,

2 8 Section 5.21 (d) does allow a Appellant to voluntarily do so to assist in identification.

s

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 As part of the Appellant's Requestfor Information and Records, he did in fact voluntarily list

2 his Social Security Number on the face of the document, in an effort to assist in additional

3 identification, yet the Respondent chose to completely ignore both the Appellant's sworn and

4 notarized request for information, in addition to the Appellants voluntary submission of his Social

5 Security Number, as part of the identity verification process pursuant to 6 C.F.R. § 5.21(d).

6 Lastly, in the second letter, Ms. Pavlik states very clearly that if the Section 1746 Certificate of

7 Identity form has not been returned to her office within 30 days of the date of the letter, then the

8 Appellant's FOIA request would not be processed and would be indefinitely denied.

9 The letter states in part:

10

11 "If we do not receive the completedform within 30 business

12 days from the date of this letter, we will assume that you no

13 longer require the information requested, and your request .

14 will be administratively closed "

15

16 Even though the Appellant subsequently refused to send Ms. Pavlik the Certificate of Identity

17 Form, since the Appellant had already submitted all the proper identifiable information that is required

18 by federal law, ironically, on Friday, November 23,2007, the Appellant received via U.S. mail, a

19 third correspondence from the Respondent which was dated November 7,2007. A copy of this letter is

20 attached herein as EXHIBIT F.

21 In this letter, Ms. Pavlik informed the Appellant the following:

22

23

24

25

26

27

28

"A search of the Office of Professional Responsibility for documents

responsive to your request produced a total of575 pages. Of the pages,

I have determined that 14 pages of the records are releasable in their

entirety, six pages are partially releasable, and 555 pages are withheld

in their entirety pursuant to Title 5 US.c. § 552(b)(6) and (b)(7)(C)."

6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

. 1 Apparently someone in the FOIA office realized that demanding the Appellant to complete a

2 Certificate of Identity was ridiculous, and the FOIA request was eventually processed in accordance

3 with federal FOIA law. Nevertheless, the Respondent has subsequently withheld a total of 555 pages

4 that specifically pertain to the Appellant's Requestfor Information and Records. Since the FOIA

5 provides that "any reasonably segregable portion of a record shall be provided to any person

6 requesting such record after deletion of the portions which are exempt," the Appellant believes that the

7 Respondent has not therefore complied with the FOIA. The Appellant further believes that there must

8 be additional segregable portions of the withheld 555 pages that do not fall within the FOIA

9 exemptions, and that they must be released to the Appellant immediately.

lOIn Appellant's initial Request for Information and Records, it stated very clearly that all

11 denied, exempted, and or excised information, must be narrowly construed in order that no thing

12 which should be public, may be hidden from the Appellant. If any documents were to be denied in

13 part or in whole, the Appellant asked the Respondent to specify which exceptions under 5 U.S.C. §

14 552(B) were to be claimed for each word, sentence, passage, whole document or file denied, and that

15 the Respondent should provide, fully in writing, a complete and factual justification for the deletion of

16 total or partial denial of documents in accordance with 5 U.S.C. § 552(a)(2). The Appellant expected

1 7 that any remaining segregable nonexempt portions of any requested information or records would be

18 released in a timely manner in accordance with 5 U.S.C. § 522(a)(6)(F). But instead, the Respondent

19 has blatantly and intentionally ignored the Appellant's requests in violation of federal law.

20 WHEREFORE, APPELLANT HEREBY APPEALS the Respondent's baseless and

21 unlawful denial of records and its assertion that the 555 pages of documents found by the Respondent

22 are in fact lawfully being exempted, and Appellant further appeals the Respondent's initial

2 3 unnecessary delay and denial of requested information and records. If the Respondent subsequently

24 chooses, after the submittal of this appeal herein, to continue to withhold the entire 555 pages of

2 5 withheld pages, or any portion thereof, the Appellant then requests that the Respondent immediately

2 6 submit to the Appellant, an itemized "index" of the documents being withheld, that describes each

2 7 page, file, or record, or withheld portion thereof, and that the Respondent attaches to said index, a

28 detailed justification of the Respondent's grounds for withholding each page, file, or record.

7

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 The Appellant is confidant that the DHS Office of the General Counsel, after its meticulous

2 inspection of the 555 pages being withheld, will conclude that the records in question are not in fact

3 being properly withheld, segregated, or redacted, and that the General Counsel will overrule the

4 Respondent's decision to withhold these 555 pages of documents in its current possession.

5 In addition, due to the Respondent's obvious intentional and unnecessary denial in releasing the

6 requested document(s), the Appellant further demands that his Requestfor Information and Records

7 be hereby qualified for expedited processing in accordance with 5 U.S.C. § 522(a)(6)(E)(i)(II).

8 The determination of the DHS Office of General Counsel, to provide expedited processing for

9 the Appellant's initial Request for Information and Records, and an official notice therein of a final

10 determination of whether expedited service will be granted, shall be provided to the Appellant within

11 20 days after the receipt of this Notice of Administrative Appeal. [5 U.S.C. § 522(a)(6)(E)(ii)(I)].

12 RESPONDENT SHOULD TAKE NOTICE that the Appellant is prepared to pursue

13 whatever legal remedy is necessary to obtain access to the requested records and material and to

14 prevent their negligent and unnecessary denial and delay. Any further willful violation of the FOIA or

15 the Privacy Act, including but not limited to, the failure of the Respondent to respond to the Appellant

16 in a timely matter pursuant to the FOIA, the improper withholding or unnecessary delay of records

1 7 which are not exempted by the FOIA or the Privacy Act, or the unlawful destruction of any requested

18 documents, will result in the Appellant, in accordance with 5 U.S.C. § 552(4)(B), filing for judicial

19 review in the United States District Court for Nevada, in order to compel the Respondent to produce

2 a and turn over all requested documents in a timely manner without further unnecessary delay.

21

22

23

24

25

26

27

28

8

1

2

CONFIDENTIAL - FOR OFFICIAL USE ONLY

3 I respectfully ask for this,

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STATE OF NEVADA

COUNTY OF CLARK, to-wit:

SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and for the county and

state aforesaid above, this 15th day of JANUARY, 2008, that PHILIP J. BLACK, appeared before

me and executed the above Notice of Administrative Appeal.

Notary .

My Commission Expires on: rw. ~ ;to \ \

R. B. RAMIREZ .~_"-..... Notary Public State of N4MlCIa

No. 03·80544.1 My oppt, expo Feb. 5, 2011

SEAL

PHILIP J. BLACK 7582 LAS VEGAS BLVD #450

LAS VEGAS, NEVADA 89123-1009

December 7, 2009

DELIVERED VIA U.S. CERTIFIED MAIL NO. 7008 11400003 7469 1687

Catrina M. Pavlik, FOIA Officer Immigration & Customs Enforcement FOIAIPrivacy Act Section Information Disclosure Unit 800 North Capitol Street, N.W. 5th Floor, Suite 585 Washington, DC 20536

RE: FOIA & PRIVACY ACT REOUEST FOR INFORMATION AND RECORDS

FOIA Request No. 025

Dear Ms. Pavlik,

Please find enclosed my signed and notarized Freedom of Information Act and Privacy Act Requestfor Information and Records in accordance with 6 C.F.R. § 5.21(d).

The attached Request for Information and Records indicates my current mailing address, phone number, date of birth, and Social Security number as required by law. I am a retired employee of the Department of Homeland Security, Transportation Security Administration, Office of Law Enforcement, Federal Air Marshal Service.

I have also attached herein a copy of President Obama's recent memorandum to all agency directors of the Executive Branch, in which he proclaims that no government agency should keep information confidential merely because public officials might be embarrassed by disclosure or because errors or failures might be revealed. "Nondisclosure should never be based on an effort to protect the personal interests of government officials at the expense of those they are supposed to serve." I would assume that you concur, and agree to abide by President Obama's guidance.

If you have any questions regarding this FOIA and Privacy Act request, please call me anytime so that I may address any of your concerns or questions. I may be reached at 1-800-980-2185.

Sincerely,

~'I_'I •• ~~.A1r Philip 1.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

CONFIDENTIAL - FOR OFFICIAL USE ONLY

FREEDOM OF INFORMATION ACT & PRIVACY ACT

REQUEST FOR INFORMATION AND RECORDS

PHILIP JEFFREY BLACK 7582 Las Vegas Blvd S #450 Las Vegas, Nevada 89123 Phone: 980-2185 DOB: POB: S.S.

Requester,

UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT Catrina M. Pavlik, ICE - FOIA Officer FOIAIP A Section Information Disclosure Unit 800 North Capitol St. N.W. 5th Floor, Suite 585 Washington, DC 20536

Respondent.

* * * * * * * * * * * * * * * * * * * * * * * *

The Freedom of Information Act Public Law 104-231 5 U.S.C. § 522 et seq.

The Privacy Act of 1974 Public Law 93-579 5 U.S.C. § 522a et seq.

FOIA Request No. 025

Delivered via US Certified Mail No. 7008 11400003 7469 1687

18 REQUEST IS HEREBY MADE, pursuant to the Freedom of Information Act, Title 5 of the

19 United States Code, Section 522, [hereafter referred to as "FOIA"], and also the Privacy Act of 1974,

2 0 Title 5 of the United States Code, Section 522(a) [hereafter referred to as the "Privacy Act"], and is

21 made by Philip J. Black, [hereafter referred to as the "Requester"], being a citizen of the United States

22 and of the State of Nevada, and such request is hereby served upon the US Immigration & Customs

23 Enforcement, Office of Professional Responsibility [hereafter referred to as the "Respondent"].

2 4 The FOIA establishes a presumption that records in the possession of agencies and departments

25 of the Executive Branch of the United States government, are openly accessible to the people, and as

26 such, the FOIA requires Federal agencies to provide the fullest possible disclosure of information to

27 the public. Whereas, the Privacy Act specifically allows individuals to seek access to an agency's

28 "system of records" pertaining to themselves, and to review the record and have copies made thereof.

1

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 SPECIFIC REQUEST FOR INFORMATION AND RECORDS

2 On December 6, 2004, the Requestor filed a written whistleblower complaint with the United

3 States Department of Homeland Security, Department of Immigration & Customs Enforcement (ICE),

4 Office of Professional Responsibility (aPR). The complaint was initially received by Senior Special

5 Agent Thomas 1. Ruzevich, who was assigned to the OPR Chicago field office. The complaint was

6 forwarded to Special Agent-In-Charge James Wong, of the OPR San Diego field office. The

7 investigation was subsequently directed by SA Wong and conducted by Resident Agent in Charge

8 Kathy Butterfield and Senior Special Agent Carolyn Novinskey, from the OPR San Diego field office.

9 The Respondent sent SAC Wong numerous additional whistleblower retaliation complaints throughout

10 the course of the investigation, which documented the continual hostile work environment.

11 The Respondent's initial complaint alleged that management of the Federal Air Marshal

12 Service (F AMS) employed at the Las Vegas field office (LASFO), knowingly and willfully undertook

13 detrimental personnel actions against the Requestor, in retaliation for his protected whistleblowing

14 disclosures to Congress - and in retaliation for such disclosures, LASFO senior management engaged

15 in Prohibited Personnel Practices through abuse of authority and gross mismanagement, which

16 subjected the Requestor to a hostile work environment in strict violation of 5 U.S.C. § 2302(b )(8).

1 7 In accordance with the laws and instructions set forth in both the FOIA and in the Privacy Act,

18 Requester asks that a complete and thorough search be conducted (to be reviewed manually or by

19 automated means), of all filing systems and locations, for all records, items, collections, grouping of

20 information, and "systems of records" that are maintained by the Respondent, and copies thereof,

21 which are specifically and only limited to the following documents and material:

22 1. Any and all official records, items, material, or grouping of information (written or printed),

23 papers, photographs, interview sound recordings or transcripts, logs, any and all letter and

24 memorandum correspondences, Reports of Investigation, electronic mail messages, affidavits,

25 investigation notes, or any other investigative material, regardless of physical form or characteristics,

26 which were generated or written by the ICE Office of Professional Responsibility (OPR), which

27 specifically and only pertain to the above described investigation of the Respondent's complaints.

28 [5 U.S.c. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

2

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 2. Any and all official records, items, material, or grouping of information (written or printed),

2 papers, documents, photographs, interview sound recordings and transcripts, logs, any and all letter

3 and memorandum correspondences, Reports oUnvestigation, electronic mail messages, affidavits,

4 personal investigation notes, or any other investigative material, regardless of physical form or

5 characteristics, which were generated or written by SAC James Wong, and which specifically and

6 only pertain to the above described complaints filed by the Requestor, and which specifically and only

7 pertain to the subsequent investigation that was conducted as a result of the Requestor's complaints.

8 [5 U.S.C. § 552(a)(3); 5 U.S.c. §§ 552a(a)(4) and 552a(d)(1)].

9 3. Any and all official records, items, material, or grouping of information (written or printed),

10 papers, documents, photographs, interview sound recordings and transcripts, logs, any and all letter

11 and memorandum correspondences, Reports oUnvestigation, electronic mail messages, affidavits,

12 personal investigation notes, or any other investigative material, regardless of physical form or

13 characteristics, which were generated or written by RAC Kathy Butterfield, and which specifically

14 and only pertain to the above described complaints filed by the Requestor, and which specifically and

15 only pertain to the investigation that was conducted as a result of the Requestor's complaints.

16 [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

1 7 4. Any and all official records, items, material, or grouping of information (written or printed),

18 papers, documents, photographs, interview sound recordings and transcripts, logs, any and all letter

19 and memorandum correspondences, Reports oUnvestigation, electronic mail messages, affidavits,

20 personal investigation notes, or any other investigative material, regardless of physical form or

21 characteristics, which were generated or written by SSA Carolyn Novinskey, and which specifically

22 and only pertain to the above described complaints filed by the Requestor, and which specifically and

23 only pertain to the investigation that was conducted as a result of the Requestor's complaints.

24 [5 U.S.C. § 552(a)(3); 5 U.S.C. §§ 552a(a)(4) and 552a(d)(1)].

25

26

27

28

3

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 SEARCH FOR INFORMATION AND RECORDS

3 Requester asks that a complete and thorough search be conducted, manually or by automated

4 means, of all pertinent information, matter, and records contained in "main" files and "see reference"

5 files, including but not limited to numbered and lettered sub files, envelopes, enclosures behind files,

6 "controlled files", administrative files, "closed files", forwarded files, or any files, including agency

7 electronic mail files, contained on a computer or other electronic data processing system, and that the

8 Respondent place any "missing files" pertaining to this Request on a "special locate" status and that

9 the Respondent notifies the Requester that it has done so. [5 U.S.C. § 552(a)(3)].

10

11 EXEMPTION OF REQUESTED DOCUMENTS

12 The Respondent is hereby reminded that all denied, exempted, and or excised information,

13 must be narrowly construed in order that no thing which should be public, may be hidden from the

14 Requester. If any documents are denied in part or in whole, the Requester asks the Respondent to

15 specify which exceptions under 5 U.S.C. § 552(B) is or are claimed for each word, sentence, passage,

16 whole document or file denied, and that the Respondent provide, fully in writing, a complete and

1 7 factual justification for the deletion of total or partial denial of documents. [5 U.S.C. § 552(a)(2)].

18 The FOIA's exemptions are discretionary, and excluded records may be disclosed by the

19 designated FOIA Officer if deemed appropriate, except where disclosure is otherwise prohibited by

20 law. Contrary to the instructions issued by the U.S. Department of Justice on October 12,2001, the

21 standard should not be to allow the withholding of information and records whenever there is merely a

22 "sound legal basis" for doing so - an erroneous standard set in strict violation ofthe FOIA.

23 If any of the herein requested information, material, or records must be excised in accordance

24 with 5 U.S.c. § 552(b), the Requester asks the Respondent to "black out" the material rather than to

25 just "white out" or "cut out" the excised parts, and if feasible, the extent of the deletion shall be

26 indicated at the place in the record where the deletion was made. [5 U.S.C. § 552(a)(2)]. Requester

27 expects that any remaining segregable nonexempt portions of any requested information or records

28 will be released in a timely manner in accordance with the FOIA. [5 U.S.C. § 522(a)(6)(F)].

4

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 SEARCH AND DUPLICATION FEES

3 The Freedom of Information Act - As amended in 1986, the FOIA drastically reduced or

4 eliminated entirely, the cost of small noncommercial requests for information and records released

5 pursuant to the FOIA. Fees shall be limited to reasonable standard charges for document searches and

6 duplication. [5 U.S.C. § 522(a)(4)(A)(ii)(III)]. In addition, fees shall be waived or drastically reduced,

7 "if disclosure of the information and records is in the public interest, because it is likely to contribute

8 significantly to public understanding of the operations or activities of the government, and is not

9 primarily in the commercial interest of the Requestor". [5 U.S.C. § 522(a)(4)(A)(iii)]. Any Advanced

10 payment of fees is not allowed under the FOIA, unless the requestor has previously failed to timely

11 pay required fees - which is not the case in this matter. [5 U. S. C. § 5 22( a)( 4)( A)( v)].

12 The Privacy Act - Fees may only be charged for the cost of the duplication of information and

13 records released pursuant to the Privacy Act. No fees may be charged for the time it takes to search

14 for any records, or for the time it takes to review the records to determine if any exceptions apply. In

15 most instances, agencies will not charge fees for making a copy of a Privacy Act file, especially when

16 the file is small in size. Any agency has the authority to waive all fees for information and records

1 7 disclosed under the Privacy Act. [5 U.S.c. § 552a(t)(5)].

18

19 REQUEST FOR WAIVER OF ALL FEES

2 a Any time retaliation occurs against a federal employee whistleblower who comes forward and

21 reports abuse of authority, gross mismanagement, waste fraud and abuse, and or prohibited personnel

22 practices, it usually hinders any chance of accountability against the wrongdoers, and inevitably

23 damages the reputation and career of the reporting employee.

24 Government assets that are redirected against the federal employee whistle blower will

25 subsequently be both costly and unproductive. Agency supervisors, mid-level managers, and senior

2 6 executives who knowingly cover-up and conceal prohibited personnel practices and or criminal

27 activity, ultimately divert invaluable resources and assets away from law enforcement and intelligence

28 gathering capabilities - which indisputably jeopardizes the safety and security of our country.

5

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 Additionally, and most importantly, federal employees subjected to whistleblower retaliation

2 are eventually silenced and gagged out of fear of losing their jobs or security clearances. Their silence

3 inhibits Congress from successfully exercising its oversight responsibilities by cutting off the flow of

4 information to oversight committees and investigative government agencies. By lawfully obtaining

5 the herein requested information and records, in accordance with the FOIA and the Privacy Act, the

6 Requester seeks to prevent any such obstruction of the flow of documents (the herein requested

7 information and records) to any Congressional oversight or government agency that currently has

8 jurisdiction investigating Requestor's whistleblower complaints of retaliation.

9 All information and records obtained through this Request will be given to a non-profit

10 government watchdog organization, and to numerous federal government agencies, in order to assist

11 them in their current ongoing whistleblower retaliation investigations, in connection with complaints

12 filed by the Requestor - to include but not limited to the Project on Government Oversight (POGO),

13 the U.S. Office of Special Council (OSC), the U.S. Office ofInspector Generals (OIG), the U.S. Equal

14 Employment Opportunity Commission (EEOC), the Office of Internal Affairs of the Transportation

15 Security Administration (TSA-OIA), and the Chief Counsel of Oversight and Investigations of the

16 House Judiciary Committee, in the United States House of Representatives.

1 7 A reasonable person should conclude without a doubt, that the information and records being

18 sought are both in the public's interest and safety, since the documents obtained might be given to a

19 Congressional oversight committee, numerous government investigative agencies, and lastly a non-

2 0 profit government oversight organization - information and records that will contribute significantly

21 to the public's understanding of the operations and activities of their government. The public has a

22 right to know when there is a lack of accountability in their government that embodies and insulates

23 both malfeasance and the coordinated retaliation of federal government whistleblowers.

24 THEREFORE, the Requestor hereby seeks a waiver of any and all fees pursuant to both the

25 FOIA and the Privacy Act, for the reasonable and standard direct costs of the review, search, and

2 6 duplication of the herein requested information, records, and documents, notwithstanding the first two

27 hours of search time and the first one hundred pages of duplication already exempted from fees in

28 accordance with the FOIA. [5 U.S.C. § 522(a)(4)(A)(iv)(II)].

6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 NOTICE OF REOUESTOR'S INTENT IF FEDERAL LAWS ARE VIOLATED

3 The Respondent should take notice that the Requester is prepared to pursue whatever legal

4 remedy is necessary to obtain access to the requested records and material. Any willful violation of

5 the FOIA or the Privacy Act, including but not limited to, the failure of the Respondent to respond to

6 the Requester in a timely matter pursuant to the FOIA, the improper withholding of records which are

7 not exempted by the FOIA or the Privacy Act, or the unlawful destruction of any requested

8 documents, will result in the Requester immediately filing a Complaint for Injunctive Relief in the

9 United States District Court for the Southern District of Nevada, in order to compel the Respondent to

10 produce and turn over all requested documents to the Requestor.

11

12 I respectfully ask for this,

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STATE OF NEVADA

COUNTY OF CLARK, to-wit:

SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and for the county and

state aforesaid above, this 7th day of December, 2009, that PHILIP J. BLACK, appeared before

me and executed the above FOIA Requestfor Information and Records.

SEAL

7

Phillip Black

7582 Las Vegas Blvd #450 Las Vegas, NY 89123

Re: 2010FOIA1696

Dear Mr. Black:

December 17, 2009

U.S Department of Homeland Security

Washington, DC 20536

U.S. Immigration and Customs Enforcement

This acknowledges receipt of your Freedom ofInformation Act (FOIA) request to the Immigration and Customs Enforcement (ICE), dated December 8, 2009, and to your

request for a waiver of all assessable FOIA fees. Your request was received in this office on December 17,2009. Specifically, you requested any and all documents written and generated by OPR, SAC James Wong, RAC Kathy Butterfield and SSA Carolyn Novinskey regarding written

whistleblower complaint with the United States Department of Homeland Security, Department of

Immigration & Customs Enforcement, Office of Professional Responsibility alleging that management

of the Federal Air Marshal Service employed at the Las Vegas field office, knowingly and willfully undertook detrimental personnel actions against Phillip Black ..

Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Per Section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, the Department processes FOIA requests according to their order of receipt. Although DHS' goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10-

day extension of this time period. As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request, as allowed by Title 5 U.S.C. § 552(a)(6)(B). If you care to narrow the scope of your

request, please contact our office. We will make every effort to comply with your request in a timely

manner; however, there are currently 625 open requests ahead of yours.

As it relates to your fee waiver request, your request will be held in abeyance pending the quantification of responsive records. The DHS FOIA Regulations, 6 CFR § 5.11(k)(2), set forth six factors to examine in determining whether the applicable legal standard for a fee waiver has been met: (1) Whether the subject of the requested records concerns "the operations or activities of the government;" (2) Whether the disclosure is "likely to contribute" to an understanding of government operations or activities; (3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons; (4) Whether the contribution to public understanding of government operations or activities will be "significant;" (5) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and

(6) Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor. If any responsive records are located, we will consider

these factors in our evaluation of your request for a fee waiver.

In the event that your fee waiver is denied, we shall charge you for records in accordance with the DHS Interim FOIA regulations as they apply to non-commercial requestors. As a non­commercial requestor you will be charged 10-cents a page for duplication, although the first 100

pages are free, as are the first two hours of search time, after which you will pay the per quarter­hour rate of the searcher. You will be promptly notified once a determination is made regarding

your fee waiver request.

Per section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, the Department processes FOIA requests according to their order of receipt. We will make every effort to comply with your request in a timely manner; however, there are currently 625 open requests ahead of yours. Nevertheless, please be assured that one of the processors in our office will respond to

your request as expeditiously as possible.

Your request has been assigned reference number 2010FOIA1696. Please refer to this identifier in

any future correspondence. You may contact this office at (202) 732-0300 or (866) 633-1182.

Sincerely,

f/~ Catrina M. Pavlik-Keenan

FOIA Director

January 19,2010

Mr. Philip Black 7582 Las Vegas Blvd. #450 Las Vegas, NV 89123-1009

Re: FOIA Case Number 2010FOIA1696

Dear Mr. Black:

U.S. Department of Homeland Secul'ity 800 North Capitol Street #585 Washington, DC 20S36-S009

U.S. Immigration and Customs Enforcement

This letter provides a fee estimate applicable to searching for records responsive to your December 7, 2009 Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE). You have requested copies of "all records" generated or written by the ICE Office of Professional Responsibility (OPR), SAC James Wong, RAC Kathy Butterfield, and SSA Carolyn Novinskey which specifically and only pertain to complaints filed by you [as identified in your FOIA request], and which specifically and only pertain to the investigation that was conducted as a result of your complaints [as identified in your FOIA request].

Your request is being processed under the FOIA, 5 U .S.c. § 552. The FOIA provides three levels of fees that may be assessed to process a FOIA request according to categories of FOIA requesters. I

Pursuant to the DHS implementing regulations, 6 C.F .R. § 5.11, individuals or non-commercial requesters are responsible to pay 10-cents a page for duplication, although the first 100 pages are free, as are the first two hours of search time, after which you will pay the per quarter-hour rate ($4.00, $7.00, $10.25) of the searcher. A preliminary search ofICE OPR has determined that the search for records responsive to your FOIA request will require a minimum of 32 hours to complete. Billable search costs at $7.00 per quarter hour would be $840.00.z Please note that this estimate does not include any applicable duplication costs.

Since the total estimated fee exceeds $250.00, you must make an advance payment of an amount up to the amount of the entire anticipated fee before we can begin to process your request. 3 Please submit your check or money order in the amount of $420.00, made payable to the Treasury of the United States, to this office within 10 business days from the date of this letter. Please mail your payment to this office at the following address:

U.S. Immigration and Customs Enforcement Freedom of Information Act Office 800 North Capitol Street #585 Washington, DC 20536-5009

1 See 5 U.S.c. § 552(a)(4)(A)(ii)(I),(II),(III) (2000). 232 hours minus 2 hours search free equals 30 hours. 30 hours at $7.00 per quarter hour ($28.00 per hour) equals $840.00. 3 See 6 C.F.R. § 5.11(i).

\vww.ice.gov

In the alternative, you may narrow the scope of your request to reduce the universe of responsive records. If you wish to narrow the scope of your request, please send an amended request and indicate the processing fee amount you are willing to pay within 10 business days from the date of this letter. You may send your amended request to the address above, or send it by facsimile to (202) 732-0310.

If we do not receive an advance payment of $420.00 or an amended request from you within ten (10) business days from the date of this letter, we will consider this request withdrawn, and we will administratively close your request file. Pending your response, we will toll your request under the provisions of the FOIA.4

If you need to contact our office about this matter, please refer to case number 2010FOIA1696. This office can be reached at (202) 732-0300 or (866) 633-1182.

45 U.S.c. § 552(a)(6)(A).

www.ice.goY

PHILIP. J. BLACK 7582 LAS VEGAS BOULEVARD S #450

LAS VEGAS, NEVADA 89123

February 12,2010

DELIVERED VIA U.S. CERTIFIED MAIL NO. 7008 11400003 7469 1731

General Counsel Office of the General Counsel Department of Homeland Security Washington, DC 20528

RE: NOTICE OF ADMINISTRATIVE APPEAL

Case No. 2 0 1 0 F 0 I A 1 6 9 6

Dear General Counsel,

On December 7,2009, I filed with the FOIA office of the Immigration and Customs Enforcement, a Freedom of Information Act and Privacy Act Requestfor Information and Records.

A document consisting of 575 pages specifically related to my FOIA request for information and records is currently being unnecessarily delayed and denied contrary to federal law.

In response, please find attached my signed and notarized Notice of Administrative Appeal, which I am filing in accordance with 6 C.F.R. §§ 5.9(a) and 5.25(a).

If you have any questions regarding this Administrative Appeal, please feel free to call me anytime so that I may address any of your concerns or questions.

I may be reached at: (800) 980-2185

Sincerely,

~rlinp nu J rl~:""""F'-"

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CONFIDENTIAL - FOR OFFICIAL USE ONLY

FREEDOM OF INFORMATION ACT & PRIVACY ACT REQUEST FOR INFORMATION AND RECORDS

PHILIP JEFFREY BLACK 7582 Las Vegas Blvd S #450 Las Vegas, Nevada 89123-1009 Phone: 980-2185 DOB: POB:

Appellant,

UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT Catrina M. Pavlik, ICE-FOIA Officer FOIA/PA Section Information Disclosure Unit 800 North Capitol St. N.W. 5th Floor, Suite 585 Washington, DC 20536

Respondent.

* * * * * * * * * * * * * * * * * * * * * * * *

----------------------------------*

JURISDICTION

The Freedom of Information Act Public Law 104-231 5 U.S.C. § 522 et seq.

The Privacy Act of 1974 Public Law 93-579 5 U.S.C. § 522a et seq.

Homeland Security Act Public Law 107-296 6 C.F.R. Part 5 et seq.

Case No. 2 0 1 0 F 0 I A 1 6 9 6

NOTICE OF APPEAL

ADMINISTRATIVE APPEAL IS HEREBY MADE, by Philip Jeffrey Black, [hereafter

referred to as the "Appellant"], being a citizen of the United States and of the State of Nevada, and

who is a retired federal employee of the Transportation Security Administration, United States

Department of Homeland Security, pursuant to the Freedom of Information Act, Title 5 of the United

States Code, Section 522, [hereafter referred to as the "FOIA"], and the Privacy Act of 1974, Title 5 of

the United States Code, Section 522(a) [hereafter referred to as "The Privacy Act"], and Title 6 of the

United States Code of Federal Regulations, Chapter I, Part 5, Section 5.9 and Section 5.25, [hereafter

referred to as the "DHS Rules and Regulations"], and such administrative appeal is hereby served upon

the General Counsel, Department of Homeland Security, Office of the General Counsel, Washington,

DC 20528. [6 C.F.R. §§ 5.9(a) and 5.25(a); DHS Management Directive No. 0460.1(4)(G)].

Page 1 of 6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1

2 FOIA AND THE PRIVACY ACT

3 The FOIA establishes a presumption that records in the possession of agencies and departments

4 of the Executive Branch of the United States government, are openly accessible to the people, and as

5 such, the FOIA requires federal agencies to provide the fullest possible disclosure of information to

6 the public. Whereas, The Privacy Act specifically allows individuals to seek access to an agency's

7 "system of records" pertaining to themselves, including personnel and medical records held by the

8 agency, and to review the records and have copies made thereof.

9 If any Requestor filing for information or records under the FOIA or The Privacy Act, is

10 dissatisfied in any way with a federal government agency's response, the Requestor may then

11 submit to the General Counsel (General Law) of the Department of Homeland Security, an

12 administrative appeal, in response to any adverse decision which denies or delays in any respect, the

13 disclosure of information or records requested under the FOIA and or any records on oneself sought

14 under The Privacy Act. [5 U.S.C. § 552(6)(A)(ii), 6 C.F.R. §§ 5.9(a) and 5.25(a)].

15

16 STATEMENT OF FACTS

17 On December 7, 2009, the Appellant, in accordance with the DHS Rules and Regulations,

18 appeared before notary public Irene Pederson, and after having his identity meticulously verified

19 through the presentation of two forms of government identification cards, and only after affixing his

20 right thumbprint to the notary's official records book, the Appellant subscribed and executed his

21 original Request for Information and Records while under oath and under the penalty of perjury.

22 A copy of this document is attached herein as EXHIBIT A.

23 Additionally on December 7,2009, the Appellant mailed to the Respondent a US Postal

2 4 Service Priority Mail envelope containing the signed and notarized Request for Information and

25 Records, certified with return receipt No. 7008 11400003 7469 1687. According to the Postal Service

26 return receipt, the envelope arrived to the Respondent on December 11,2009, and was signed for at

27 11 :07 PM. A copy of this signed US Postal Service return receipt is attached herein as EXHIBIT B.

28

Page 2 of 6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 DENIAL OF INFORMA nON AND RECORDS

2 On February 1,2010, the Appellant received a response to his Requestfor Information and

3 Records, from ICE FOIA Officer Catrina M. Pavlik. In this letter dated January 19,2010, Ms. Pavlik

4 informed the Appellant that:

5 "A preliminary search of ICE OPR has determined that the searchfor records responsive to

6 your FOIA request will require a minimum of 32 hours to complete. Billable search costs at

7 $7. 00 per quarter hour would be $840. 00. Please note that this estimate does not include any

8 applicable duplication costs. "

9 A copy of this letter is attached herein as EXHIBIT C. But on October 4,2007, two years prior to the

10 Appellant's current FOIA request, the Appellant filed a similar FOIA request for the exact same

11 information and records. A copy of this request is attached herein as EXHIBIT D. And in the

12 Appellant's reply on October 12,2007, Ms. Pavlik wrote to the Appellant indicating that he would

13 only be charged for duplication fees. In the letter, Ms. Pavlik wrote:

14 "We shall charge youfor records in accordance with the DHS Interim FOIA regulations as

15 they apply to non-commercial Appellants. As a non-commercial Appellant, you will be

16 charged 10-cents a page for duplication, although the first 100 pages are free, as are the first

1 7 two hours of search time, after which you will pay the quarter-hour rate of the searcher. "

18 A copy of this letter is attached herein as EXHIBIT E. And on November 7, 2007, Ms. Pavlik wrote

19 to the Appellant, in her final response to the Appellant's prior FOIA request, informing him that:

20 "A search of the Office of Professional Responsibility for documents responsive to your

21 request produced a total of575 pages. Of the pages, I have determined that 14 pages of the

22 records are releasable in their entirety, six pages are partially releasable, and 555 pages are

23 withheld in their entirety pursuant to Title 5 Us.c. § 552(b)(6) and (b)(7)(C). "

24 A copy of this letter is attached herein as EXHIBIT F. At no time during the Appellant's previous

25 FOIA request two years earlier, for the exact same information and records, was he charged

26 $840.00 for search fees. In fact, the Appellant was not charged any fees whatsoever for the

27 Respondent's search of the requested information and records. What happened to ICE FOIA office's

28 original file containing the original requested document, which would negate any current search?

Page 3 of 6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 General Records Schedules (GRS) are issued by the Archivist of the United States to provide

2 disposition authorization for records common to all Federal Government agencies. In particular, the

3 National Archives and Records Administration (NARA), General Records Schedule No. 14, covers

4 records pertaining to information services performed by Federal Government agencies in their day-to-

5 day affairs, and in their relations with the public, including records created in administering

6 Freedom ofInformation Act (FOIA) and Privacy Act programs - Section 11 of this Schedule

7 describes the files that are accumulated by an agency in its requirement of carrying out the provisions

8 of the FOIA. The retention and destruction requirements of such FOIA documents are as follows:

9

10 GENERAL RECORDS SCHEDULE NO. 14

11 Information Services Records

12 Section 11 - FOIA Requested Files.

13 Files created in response to requests for information under the FOIA, consisting of the original

14 request, a copy of the reply thereto, and all related supporting files, which may include the

15 official file copy of requested record or copy thereof.

16

17

18

19

20

21

22

23

24

25

26

27

28

a. Correspondence and supporting documents

(1)

(2)

Granting access to all the requested records.

Destroy 2 years after date of reply.

Responding to requests for nonexistent records; to requesters who

provide inadequate descriptions; and to those who fail to pay agency

reproduction fees.

(a) Request not appealed.

Destroy 2 years after date of reply.

(b) Request appealed.

Destroy as authorized under Item 12.

(3) Denying access to all or part of the records requested.

(a) Request not appealed.

Destroy 6 years after date of reply.

Page 4 of 6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 In Ms. Pavlik's final disposition letter of November 7, 2007 (Exhibit F), she informed the

2 Appellant that of the 575 pages of the document previously requested in 2007, the Respondent only

3 released 16 pages in its entirety, 6 pages partially redacted, and denied the release of the remaining

4 555 pages of the document. Therefore, in accordance with Section 11(a)(3) of the National Archives

5 and Records Administration (NARA) General Records Schedule No. 14, as clearly stated above, the

6 Respondent was required by federal law to retain in their agency files, the entire 575 page document

7 that the Appellant had previously requested in 2007 - for a period of no less than SIX YEARS.

8 Nevertheless, the Respondent is now claiming in their letter dated January 19,2010 to the

9 Appellant (Exhibit C), that during the last two years, the ICE FOIA office intentionally did not retain

10 the original 575 page document in their files, as required by law, and as a direct result of the

11 Respondent's violation of federal law, and by no fault of the Appellant, the Respondent is now

12 demanding of the Appellant, that he immediately pay the Respondent an unreasonable fee in the

13 amount of $840.00, for the re-searching and re-acquisition of the original 575 page document that the

14 ICE FOIA office had in its files in 2007. The Respondent further threatened in the same letter, that if

15 the Appellant did not submit an advance payment of $420.00 within 10 days of the letter date, the ICE

16 FOIA office would then withdrawal the Appellant's Request for Information and Records.

1 7 WHEREFORE, APPELLANT HEREBY APPEALS the Respondent's baseless and

18 unlawful denial of records, and its further actions without good faith, for refusing to supply the

19 Appellant with the requested 575 page document, without charging the Appellant an unreasonable fee

20 of $840.00. The Appellant further appeals the Respondent's unnecessary delay and denial of the

21 requested information and records, based on the Appellant's refusal to pay an exorbitant search fee.

22 In addition, due to the Respondent's obvious intentional and unnecessary denial in releasing the

23 requested document, the Appellant further demands that his Request for Information and Records be

24 hereby qualified for expedited processing in accordance with 5 U.S.C. § 522(a)(6)(E)(i)(II).

25 The determination of the DHS Office of General Counsel, to provide expedited processing for

26 the Appellant's Request for Information and Records, and an official notice therein of a final

27 determination of whether expedited service will be granted, shall be provided to the Appellant within

28 10 days after the receipt of this Notice of Administrative Appeal. [5 U.S.C. § 522(a)(6)(E)(ii)(I)].

Page 5 of 6

CONFIDENTIAL - FOR OFFICIAL USE ONLY

1 RESPONDENT SHOULD ALSO TAKE NOTICE that the Appellant is prepared to pursue

2 whatever legal remedy is necessary to obtain access to the requested records and material and to

3 prevent their negligent and unnecessary denial and delay. Any further willful violation of the FOIA or

4 the Privacy Act, including but not limited to, the failure of the Respondent to respond to the Appellant

5 in a timely matter pursuant to the FOIA, the improper withholding or unnecessary delay of records

6 which are not exempted by the FOIA or the Privacy Act, or the further unlawful destruction of any

7 requested documents, will result in the Appellant, in accordance with 5 U.S.C. § 552(4)(B), filing for

8 injunctive relief in the United States District Court for Nevada, in order to compel the Respondent to

9 produce and tum over all requested documents in a timely manner, without further unnecessary delay.

10

11 I respectfully ask for this,

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PHIDIP 1. BLA K

STATE OF NEVADA

COUNTY OF CLARK, to-wit:

SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, in and for the county and

state aforesaid above, this 12th day of FEBRUARY, 2010, that PHILIP 1. BLACK, appeared

before me and executed the above Notice of Administrative Appeal.

My Commission Expires on: fGb. Vj) Ol.OI \ SEAL

Page 6 of 6

Philip Black 7582 Las Vegas Blvd #450 Las Vegas, NY 89123-1009

Dear Sir or Madam:

March 12,2010

U.S. Department of Homeland Security Office of General Counsel Washington, DC 20528

Homeland Security

The Department of Homeland Security has received your letter appealing the adverse determination of your Freedom of Information ActlPrivacy Act (FOrAlPA) request by Immigration & Customs Enforcement (lCE) concerning OPR complaints. On behalf of the Deputy Associate General Counsel for General Law, we acknowledge your appeal request and are assigning it number DHS10-004 for tracking purposes. Please reference this number in any future communications about your appeal.

A high number of FOrAIP A requests have been received by the Department. Accordingly, we have adopted the court-sanctioned practice of generally handling backlogged appeals on a fIrst-in, fIrst­out basis. 1 While we will make every effort to process your appeal on a timely basis, there may be some delay in resolving this matter. Should you have any questions concerning the processing of your appeal, please contact Howard Plofker at howard.plofker@dhs.gov.

Sincerely,

~ ~»ictoria Newhouse

Attorney-Advisor

1 Appeals of expedited treatment denials will be handled on an expedited basis.

July 29,20 10

Philip Black 7582 Las Vegas Blvd #450 Las Vegas. NY 89123-1009

".S. Dep;Irtmeol uf Homeland Sccurit~, !!OO North Capitol Street. NW #5!!S Washington.OC 20536-5009

U.S. Immigration and Customs Enforcement

RE: DI-ISl()-OO~, 2010FOIA1696; DHSU8-070, 20U8FOJAl~O

Dear Mr. Black:

This is in response to your letter appealing 2010FOIA1696 based upon the denial ofyollr fee waiver request. Your request sought all records generated or written by the ICE Oftice of Professional Responsibility (OPR). SAC .lames Wong. RAC Kathy Butterfield, and SSA Carolyn Novinskey that specifically and only pertain to complaints filed by you [as identified in your FOIA request] and that specifically and only pertain to the investigation that was conducted as a result of your complaints as identified in your FOIA request.

In its January 19.2010 response to you, U.S. Immigration and Customs Enforcement (ICE) FOIA denied your fee waiver request. A preliminary search of ICE OPR indicated that a minimum of 32 hours would be required to complete the search. ICE FOIA requested an advanced payment of $420.00 pdor to completion of the search. You did notmake the advance payment. Upon review of the basis for your appeal. we have determined as follows:

We have decided in our discretion to waive your tce, and \ .... e are therefore remanding your appeal to ICE FOIA for processing and re-tasking to OPR and/or the appropriate agency/office(s) to obtain responsive documents.

This request is being consolidated with a separate appeal, DHS08-070, 2()08FOIA]~O. which we are administratively closing as a duplicate request as the records sought in both requests are the same.

Should you have any questions regarding this administrative remand of your appeal. please contact ICE at ice-foia(a:,dhs.gov. In the subject line of the email. piease include your appeal numbcr(s), which are OilS] O-OO~ and DHSU8-070, and the FOIA case number(s), which are 201OFOIA 1696 and 2()08FOIA]~O.

Sincerely,

~Y\A~ Susan Mathias Deputy Chief Commercial and Administrative Law Division ICE Office of the Principal Legal Advisor Departmetlt efHoH1eland.Se-eurity

ww\V.icc.gov