August 13, 2018
VIA ONLINE PORTAL & ELECTRONIC MAIL

Sabrina Burroughs
FOIA Officer
U. S. Customs & Border Protection
1300 Pennsylvania Avenue NW, Room 3.3D
Washington, DC 20229
Via FOIAOnline
Re: Freedom of Information Act Request

Dear Ms. Burroughs:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing
regulations for the Department of Homeland Security (DHS), 6 C.F.R. Part 5, American
Oversight makes the following request for records.
Bradley Arant Boult Cummings LLP lobbies the federal government on behalf of GEO Group, a
company that owns and operates private prisons, immigration-detention centers, and other
facilities.1 GEO Group “derives nearly half of its revenue from federal contracts” and, under the
Trump administration, has reportedly “escalat[ed] its spending on . . . lobbying and campaign
donations.”2 American Oversight submits this request to better understand the nature of those
lobbying efforts.
Requested Records

American Oversight requests that CBP produce the following within twenty days:
All records reflecting communications (including emails, email attachments, text messages,
messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype,
or WhatsApp), telephone call logs, calendar entries/invitations, meeting notices, meeting
agendas, informational material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of any oral
communications, or other materials) involving any employee or representative of Bradley

GEO Group, OpenSecrets.org, https://www.opensecrets.org/lobby/clientlbs.php?id=D000022003
(last visited July 26, 2018).
2
Amy Brittain & Drew Harwell, Private-Prison Giant, Resurgent in Trump Era, Gathers at
President’s Resort, WASH. POST, Oct. 25, 2017, https://www.washingtonpost.com/politics/withbusiness-booming-under-trump-private-prison-giant-gathers-at-presidentsresort/2017/10/25/b281d32c-adee-11e7-a908-a3470754bbb9_story.html.
1

1030 15th Street NW, Suite B255, Washington, DC 20005   AmericanOversight.org

 Arant Boult Cummings LLP (@bradley.com), including, but not limited to, David Stewart
and Paul Kavinoky.
CBP may limit its search to all political appointees within CBP. “Political appointee”
should be understood as any person who is a Presidential Appointee with Senate
Confirmation (PAS), a Presidential Appointee (PA), a non-career SES, any Schedule C
employees, or any persons hired under Temporary Non-Career SES Appointments,
Limited Term SES Appointments, or Temporary Transitional Schedule C Appointments.
Please provide all responsive records from April 1, 2017, to the date the search is
conducted.
In addition to the records requested above, American Oversight also requests records describing
the processing of this request, including records sufficient to identify search terms used and
locations and custodians searched and any tracking sheets used to track the processing of this
request. If you use FOIA questionnaires or certifications completed by individual custodians or
components to determine whether they possess responsive materials or to describe how they
conducted searches, we also request any such records prepared in connection with the processing
of this request.
American Oversight seeks all responsive records regardless of format, medium, or physical
characteristics. In conducting your search, please understand the terms “record,” “document,” and
“information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or
audio material of any kind. We seek records of any kind, including electronic records, audiotapes,
videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail
messages and transcripts, notes, or minutes of any meetings, telephone conversations or
discussions. Our request includes any attachments to these records. No category of material should
be omitted from search, collection, and production.
Please search all records regarding agency business. You may not exclude searches of files or
emails in the personal custody of your officials, such as personal email accounts. Records of
official business conducted using unofficial systems or stored outside of official files are subject to
the Federal Records Act and FOIA.3 It is not adequate to rely on policies and procedures that
require officials to move such information to official systems within a certain period of time;
American Oversight has a right to records contained in those files even if material has not yet been
moved to official systems or if officials have, through negligence or willfulness, failed to meet their
obligations.4

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir.
2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016).
4
See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C.
Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the
official] to forward all of his emails from his [personal] account to his business email, the
[personal] account only contains duplicate agency records at best. Therefore, the Government
claims that any hypothetical deletion of the [personal account] emails would still leave a copy of
2
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DHS-CBP-18-0436

 In addition, please note that in conducting a “reasonable search” as required by law, you must
employ the most up-to-date technologies and tools available, in addition to searches by individual
custodians likely to have responsive information. Recent technology may have rendered your
agency’s prior FOIA practices unreasonable. In light of the government-wide requirements to
manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively
on custodian-driven searches.5 Furthermore, agencies that have adopted the National Archives and
Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form
that is reasonably likely to be more complete than individual custodians’ files. For example, a
custodian may have deleted a responsive email from his or her email program, but your agency’s
archiving tools would capture that email under Capstone. Accordingly, American Oversight insists
that your agency use the most up-to-date technologies to search for responsive information and
take steps to ensure that the most complete repositories of information are searched. American
Oversight is available to work with you to craft appropriate search terms. However, custodian
searches are still required; agencies may not have direct access to files stored in .PST files, outside
of network drives, in paper format, or in personal email accounts.
Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure,
withholding information “only if . . . disclosure would harm an interest protected by an exemption”
or “disclosure is prohibited by law.”6 If it is your position that any portion of the requested records
is exempt from disclosure, American Oversight requests that you provide an index of those
documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as
exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is
actually exempt under FOIA.”7 Moreover, the Vaughn index “must describe each document or
portion thereof withheld, and for each withholding it must discuss the consequences of disclosing
the sought-after information.”8 Further, “the withholding agency must supply ‘a relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document to which they apply.’”9
those records intact in [the official’s] work email. However, policies are rarely followed to
perfection by anyone. At this stage of the case, the Court cannot assume that each and every work
related email in the [personal] account was duplicated in [the official’s] work email account.”
(citations omitted)).
5
Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28,
2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the
President, Memorandum for the Heads of Executive Departments & Independent Agencies,
“Managing Government Records Directive,” M-12-18 (Aug. 24, 2012),
https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
6
FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185).
7
Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
8
King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original).
9
Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C.
Cir. 1977)).
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DHS-CBP-18-0436

 In the event some portions of the requested records are properly exempt from disclosure, please
disclose any reasonably segregable non-exempt portions of the requested records. If it is your
position that a document contains non-exempt segments, but that those non-exempt segments are
so dispersed throughout the document as to make segregation impossible, please state what
portion of the document is non-exempt, and how the material is dispersed throughout the
document.10 Claims of nonsegregability must be made with the same degree of detail as required
for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically
that it is not reasonable to segregate portions of the record for release.
You should institute a preservation hold on information responsive to this request. American
Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including
litigation if necessary. Accordingly, you are on notice that litigation is reasonably foreseeable.

To ensure that this request is properly construed, that searches are conducted in an adequate but
efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an
opportunity to discuss its request with you before you undertake your search or incur search or
duplication costs. By working together at the outset, we can decrease the likelihood of costly and
time-consuming litigation in the future.
Where possible, please provide responsive material in electronic format by email or in PDF or
TIF format on a USB drive. Please send any responsive material being sent by mail to American
Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of
responsive records to American Oversight, please also provide responsive material on a rolling
basis.
Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and your agency’s regulations, American Oversight
requests a waiver of fees associated with processing this request for records. The subject of this
request concerns the operations of the federal government, and the disclosures will likely
contribute to public understanding of those operations. Moreover, the request is primarily and
fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii).11
American Oversight requests a waiver of fees because disclosure of the requested information is
“in the public interest because it is likely to contribute significantly to public understanding of the
operations or activities of the government.”12 Any communications between CBP and GEO Group
or its lobbyists relating to the construction and operation of private prisons or policies affecting the
private detention industry directly concern government operations and activities. The requested
records have the potential to shed light on any influence that GEO Group may have over CBP
10
11

Mead Data Central, 566 F.2d at 261.
6 C.F.R. § 5.11(k)(1)(2); see, e.g., McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d

1282, 1285 (9th Cir. 1987).
12
6 C.F.R. § 5.11(k)(1)(i); see also 6 C.F.R. § 5.11(k)(2)(i)–(iv).
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DHS-CBP-18-0436

 policies or contracts. The public deserves to know to what extent, if any, GEO Group is involved
in government decisionmaking regarding the use of private prisons or correctional policies. In
particular, significant interest has arisen in the role of private prison companies in CBP’s response
to the Department of Justice’s zero-tolerance policy toward unlawful immigration, which stands to
financially benefit the private prison industry. In this case, disclosures of the requested information
would contribute to the understanding of a reasonably broad audience of persons interested in the
subject, as demonstrated by the significant interest in the subject matter of this request.13 American
Oversight is committed to transparency and makes the responses agencies provide to FOIA
requests publicly available. As noted, the subject of this request is a matter of public interest, and
the public’s understanding of the government’s activities would be enhanced through American
Oversight’s analysis and publication of these records.
This request is primarily and fundamentally for non-commercial purposes.14 As a 501(c)(3)
nonprofit, American Oversight does not have a commercial purpose and the release of the
information requested is not in American Oversight’s financial interest. American Oversight’s
mission is to promote transparency in government, to educate the public about government
activities, and to ensure the accountability of government officials. American Oversight uses the
information gathered, and its analysis of it, to educate the public through reports, press releases, or
other media. American Oversight also makes materials it gathers available on our public website
and promote their availability on social media platforms, such as Facebook and Twitter.15
American Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. For example, after receiving records regarding an ethics waiver
received by a senior DOJ attorney, American Oversight promptly posted the records to its
website16 and published an analysis of what the records reflected about DOJ’s process for ethics
waivers.17 Additionally, American Oversight has a project called “Audit the Wall,” where the
13

See, e.g., Kate Ackley, GEO Group Helps Boost Lobby Revenue of Ballard Partners, ROLL

CALL, July 23, 2018, https://www.rollcall.com/news/politics/geo-group-helps-boost-lobbyingrevenue-ballard-partners; Ben Protess et al., Some Contractors Housing Migrant Children Are
Familiar to Trump’s Inner Circle, N.Y. TIMES, July 4, 2018,
https://www.nytimes.com/2018/07/04/us/migrant-families-contractors-campaign-contributions.html;
Rob Urban and Bill Allison, Prison Operators Could Cash In on Trump’s ‘Zero Tolerance’
Immigration Policy, BLOOMBERG, June 28, 2018, https://www.bloomberg.com/news/articles/201806-28/prison-operators-gain-as-u-s-immigration-detentions-surge.
14
5 U.S.C. § 552(a)(4)(A)(iii).
15
American Oversight currently has approximately 11,800 page likes on Facebook and 44,500
followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/
(last visited August 6, 2018); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited August 6, 2018).
16
DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance.
17
Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents.
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 organization is gathering and analyzing information and commenting on public releases of
information related to the administration’s proposed construction of a barrier along the U.S.Mexico border.18
Accordingly, American Oversight qualifies for a fee waiver.
Conclusion

We share a common mission to promote transparency in government. American Oversight looks
forward to working with you on this request. If you do not understand any part of this request,
have any questions, or foresee any problems in fully releasing the requested records, please contact
Hart Wood at foia@americanoversight.org or (202) 897-3918. Also, if American Oversight’s
request for a fee waiver is not granted in full, please contact us immediately upon making such a
determination.
Sincerely,

Austin R. Evers
Executive Director
American Oversight

18

Audit the Wall, AMERICAN OVERSIGHT, https://www.americanoversight.org/investigation/audit-

the-wall.
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