U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency Office of the Director Washington, DC 20528 December 17, 2018 SENT VIA EMAIL TO: Jeremy M. Creelan David W. Sussman Carl N. Wedoff Jenner & Block LLP 919 Third Avenue New York, NY 10022 jcreelan@jenner.com dsussman@jenner.com cwedoff@jenner.com larry.schwartztol@protectdemocracy.org weiserw@brennan.law.nyu.edu Laurence Schwartztol The Protect Democracy Project, Inc. 2020 Pennsylvania Avenue, NW #163 Washington, DC 20006 Wendy Weiser Brennan Center for Justice New York University School of Law 161 Avenue of the Americas New York, New York 10013 RE: CISA Case Number 2018-NPFO-00245 DHS Case Number 2018-HQFO-00465 Dear Ms. Weiser and Messrs. Creelan, Sussman, Wedoff and Schwartztol: This letter is the final response to your Freedom of Information Act (FOIA) request to U.S. Department of Homeland Security (DHS), Cybersecurity & Infrastructure Security Agency (CISA) (formerly the National Protection and Programs Directorate-NPPD) dated January 29, 2018. You have requested 1. all documents, analyses, and communications related to the decision to terminate the PACEI; 2. all documents and communications related to DHS’s assumption of any operations, tasks, duties, or responsibilities of the Commission; 3. all documents and communications related to (a) the PACEI’s “initial findings” as described in the January 3, 2018 White House press statement noted above, and (b) proposals, recommendations, endorsements, or suggestions made by the Commission or any of its members, officers, representatives, agents, connection with consultants, advisors, staff, assignees, volunteers, and other personnel; 4. all documents and communications related to plans, instructions, or intentions to maintain, establish, create, alter, or eliminate any formal or informal employment, or advising or consulting relationship, between DHS and Mr. Kobach; 5. all communications between any officer, employee or agent of DHS and Mr. Kobach; 6. all documents or communications related to plans, instructions, or intentions to maintain, establish, create, alter, or eliminate positions within DHS for any individual who served on or worked for the PACEI in any capacity; 7. all documents and communications between the employees, agents, or detailees of the Commission or in the Executive Office of the President and employees, agents, or detailees of DHS regarding the work undertaken by the Commission (prior to its dissolution) or the work relating to the mission of the PACEI planned to be undertaken by DHS; 8. all documents and communications relating to the letters sent to state election officials by Mr. Kobach on June 28, 2017 and July 26, 2017, including but not limited to communication with state officials regarding those letters, communications with any federal government employee or agent regarding those letters, and any narrative responses or data provided by any state official in response to those letters; 9. all documents and communications subject to the Initial Request, reference number 2017-HQFO00794, or the Follow Up Request, reference number 2017 HQFO-01111, created, dated, identified, or modified subsequent to any search previously undertaken by DHS in response to the Initial or Follow Up Requests; 10. all communications and documents regarding use of the following databases for any purpose related to the PACEI, whether by any employee of DHS or by the Commission, its members, agents, and assignees: a. the Systematic Alien Verification for Entitlements (“SAVE”) program; b. the National Security Entry-Exit Registration Systems (“NSEERS”) program; c. any cross-state voter database programs, including but not limited to the electronic Registration Information Center (“ERIC”) and Interstate Voter Registration Crosscheck (“IVRC”) program; d. any list, program, or other resource that contains or can be used to determine the citizenship status of any individual; and e. any other federal database for the purpose of matching, verifying, or investigating information on voter registration lists, including all lists to which the Commission was granted access; 11. all communications and documents 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. NPPD has considered your request under the FOIA, 5 U.S.C. § 552. A search of the CISA Infrastructure Security Division (formerly the Office of Infrastructure Protection -IP), the CISA Cybersecurity Division (formerly the Office of Cybersecurity and Communications (CS&C)), and the CISA Office of the Director (formerly the Office of the Under Secretary) for records produced 460 pages that are responsive to your request. Following review, CISA has determined that 12 pages will be released in their entirety. Portions of 143 pages will be withheld pursuant to Exemptions 5, 6, 7(C), and 7(E) of the FOIA as described below. Enclosed are 155 pages with certain information withheld as described below: FOIA Exemption 5 protects from disclosure those inter- or intra-agency documents that are normally privileged in the civil discovery context. The three most frequently invoked privileges are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. After carefully reviewing the responsive documents, I have determined that portions of the responsive documents qualify for protection under the deliberative process privilege and the attorney-client privilege. The deliberative process privilege protects the integrity of the deliberative or decision-making processes within the agency by exempting from mandatory disclosure opinions, conclusions, and recommendations included within inter-agency or intraagency memoranda or letters. The release of this internal information would discourage the expression of candid opinions and inhibit the free and frank exchange of information among agency personnel. The attorney-client privilege protects confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice. It applies to facts divulged by a client to his attorney, and encompasses any opinions given by an attorney to his client based upon, and thus reflecting, those facts, as well as communications between attorneys that reflect client-supplied information. The attorney-client privilege is not limited to the context of litigation. 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 to privacy. 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. FOIA 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. FOIA Exemption 7(E) protects records compiled for law enforcement purposes, the release of which would disclose techniques and/or procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. I have determined that disclosure of certain law enforcement sensitive information contained within the responsive records could reasonably be expected to risk circumvention of the law. Additionally, the techniques and procedures at issue are not well known to the public. Additionally, during our search we located 302 pages of records that originated within the DHS Headquarters, and an additional 3 pages were located that originated within U.S. Immigration and Customs Enforcement (ICE). Therefore, we are referring your request and responsive records to the DHS Privacy Office and ICE respectively for review, processing, and direct response to you. In an effort to assist you on this matter, we are providing you with the following contact information: Sam Kaplan Chief FOIA Officer The Privacy Office U.S. Department of Homeland Security 245 Murray Lane, SW STOP-0655 Washington, D.C. 20528-0655 866-431-0486 (Telephone) 202-343-4011 (Fax) foia@hq.dhs.gov (Email) Catrina Pavlik-Keenan FOIA Officer U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security 500 12th Street, SW, STOP 5009 Washington, D.C. 20536-5009 866-633-1182 (Telephone) 202-732-4265 (Fax) ice-foia@dhs.gov (Email) If you are not satisfied with the response to this request, you may administratively appeal by writing to: Associate General Counsel (General Law), U.S. Department of Homeland Security, Washington, D.C. 20528, following the procedures outlined in the DHS regulations at 6 C.F.R. Part 5 § 5.8. Your envelope and letter should be marked “FOIA Appeal.” You may also email to ogc@hq.dhs.gov. Your appeal must be postmarked or electronically transmitted within 90 days of the date of the response to your request. Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia. Provisions of FOIA allow DHS to charge for processing fees, up to $25, unless you seek a waiver of fees. In this instance, because the cost is below the $25 minimum, there is no charge. You may contact the CISA FOIA Public Liaison at 703-235-2211 for any further assistance and to discuss any aspect of your request. Additionally, you have a right to right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1877-684-6448; or facsimile at 202-741-5769. If you have any questions regarding this matter, please contact Assistant United States Attorney, Casey Lee at (212) 637-2714 or at casey.lee@usdoj.gov. Sincerely, Mark Bittner FOIA Officer Cybersecurity & Infrastructure Security Agency Enclosure(s): 155 page(s)