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From: To: Cc: Subject: Date: Attachments: Lisette Garcia "Gramian, Nikki"; Teal, Kirsten FOIA OIG RE: FOIA Req. No 2012-125 Acknowledgement Thursday, June 07, 2012 5:44:00 PM FEMA Overpay FOIA.pdf
Hi, Ms. Gramian: I asked you to put your thoughts in writing to ensure clear communications. Indeed, based on your email response to my memorialization, it appears you have misread Judicial Watch’s FOIA request, here attached for ease of reference. You say below that: “the OIG is required by section (3)(f) of Executive Order 13520 to only review the Department’s report regarding improper payments and make recommendations.” It is those very recommendations that Judicial Watch’s FOIA, by its terms, seeks. You also state: “OIG’s role does not include reviewing the legality of such improper payments.” Judicial Watch has not asked nor does it seek records regarding what you term “the legality of such improper payments.” Rather, Judicial Watch requested: “All communications respecting the legality of recovering improper payments of any kind - including overpayments and wrongful payments- disbursed via FEMA's Emergency Food & Shelter Program.” Hence, since FEMA’s excuse to DHS-OIG for taking no action to recover improperly disbursed funds over the course of several quarters was that it was unclear about the legality of recovering improper payments, then it is logical and reasonable to believe that there are records on this topic in DHS-OIG’s possession which it acquired in the course of its duties (including compiling the quarterly reports in which FEMA’s excuse for failing to proceed with collection appears). I hope this helps the agency proceed with a prompt and thorough search. Judicial Watch anticipates timely production of all responsive records. Best, Lisette
From: Gramian, Nikki [mailto:Nikki.Gramian@oig.dhs.gov] Sent: Thursday, June 07, 2012 4:54 PM To: Lisette Garcia; Teal, Kirsten Cc: FOIA OIG Subject: RE: FOIA Req. No 2012-125 Acknowledgement
Thank you Ms. Garcia for the information you memorialize below. The purpose of our call was not to formally respond to your FOIA request; rather, we simply wished to inform you of OIG’s roles regarding improper FEMA payments so that you would have a better understanding of the types of records we maintain, and to provide you with background that would give you further insight into our planned response to your request. My hope was to initiate a dialog to facilitate open
discussion of your request that would benefit the both of us. It is unfortunate that we were not able to carry out an affable discussion without becoming confrontational.
As I attempted to explain, the OIG is required by section (3)(f) of Executive Order 13520 to only review the Department’s report regarding improper payments and make recommendations. OIG’s role does not include reviewing the legality of such improper payments. As such OIG would not maintain the types of records you seek in your request (i.e., all communications regarding the legality of recovering improper payments of any kind – including overpayments and wrongful payments – disbursed via FEMA’s Emergency Food & Shelter Program). We also wished to explain the types of records we do maintain and explain that we will produce them to you anyway, even though they are not responsive to your request. We are working on compiling the formal response to your FOIA request. In the meantime, should you have further questions regarding your request feel free to contact me.
From: Lisette Garcia [mailto:LGarcia@JUDICIALWATCH.ORG] Sent: Thursday, June 07, 2012 2:35 PM To: Gramian, Nikki; Teal, Kirsten Cc: FOIA OIG Subject: RE: FOIA Req. No 2012-125 Acknowledgement
Ms. Gramian: This email serves to memorialize your phone call to me this afternoon in which you sought to explain DHS-IG’s role in collecting the overpayments that are the subject of the attached request for public records. The reason I asked you to put your thoughts in writing is that prompt written notice of an adverse determination regarding the disclosure of public records in an agency’s possession is a statutory minimum under the Freedom of Information Act (FOIA), as well as the Administrative Procedure Act (APA) from which FOIA flows. 5 U.S.C. § 552(a)(6)(A)(i) states in pertinent part: “Each agency. . . shall determine within 20 days . . . after the receipt of any [FOIA] request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.” 5 U.S.C. § 555(e) provides in pertinent part: “Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.” Apart from the substantive elements expressly addressed within 5 U.S.C. § 552, courts have recognized a procedural aspect to an agency’s compliance with FOIA which constitutes an
“informal adjudication” subject to judicial review per terms set forth in the Administrative Procedure Act, 5 U.S.C. § 706. Reliance Electric Co. v. Consumer Product Safety Cmsn., 924 F.2d 274, 277 (D.C. Cir. 1991)(citing Chrysler Corp. v. Brown, 441 U.S. 281, 287, 317-18, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979); Occidental Petroleum Corp. v. SEC, 873 F.2d 325 (D.C. Cir. 1989); and, AT&T Information-Systems, Inc. v. General Services Admin., 258 App. D.C. 254, 810 F.2d 1233, 1236 (D.C. Cir. 1987)).
Written notice of an agency’s decision and rationale for denying a public records request in whole or in part safeguards a requester’s appeal rights, which must also be articulated in any such letter from the agency, as cited above. Judicial Watch appreciates the agency’s timely compliance with all applicable laws. To this email I have copied Ms. Kirsten Teal, who you stated was also on the phone call, along with the DHS-OIG’s general FOIA line to insure this message’s timely receipt. --Lisette
From: Teal, Kirsten [mailto:Kirsten.Teal@oig.dhs.gov] Sent: Monday, June 04, 2012 1:14 PM To: Lisette Garcia Cc: Gramian, Nikki Subject: FOIA Req. No 2012-125 Acknowledgement
Ms. Garcia, Thank you for your interest in the Department of Homeland Security (DHS) Office of Inspector General (OIG). Attached please find DHS OIG’s acknowledgement letter to your FOIA request. Thank you.
Kirsten V. Teal
U.S. Department of Homeland Security Office of Inspector General Office of Counsel Phone: 202-632-0346