Buggrit 0, Customs and Border Patrol 1

posted 12/04/06, updated 5/23/07

Bureaucracies, as a generalization, all excel at one thing: getting nothing done. When that bureaucracy is part of the United States Government, getting nothing done becomes an art form in and of itself - an intentionally frustrating, frequently incomprehensible, and occasionally illegal art form.

I've had past bad experiences with other parts of the Department of Helpless StupidityHomeland Security and FOIA requests, so my latest experience with the willful stupidity of this federal agency comes as no real surprise to me. That said, the depths they're descending to in order to not have to do their freaking jobs is pretty amazing.

A year or two after the attacks of 9/11, I travelled to Canada and back again. On the way back, I and my travelling companion were stopped and detained for some special attention from the border patrol folks, before being let go on our merry way. Curious what records the government had compiled on me, I made an FOIA/PA request on July 31, 2006, mailed to the address for FOIA/PA requests on the Customs and Border Protection website. I received a response dated September 12th that "this office does not maintain the records you request" - and that the request had been forwarded on to another CBP office elsewhere in DC.

That was irritating, but not entirely unexpected. CBP is, after all, a part of DHS, who have some of the country's most skilled experts at willfully misinterpreting and just generally screwing up FOIA and PA requests. They're far from unique in their indifference and artful incompetence, but they're among the most consistent.

What was unexpected was the letter I received last week. My request was returned to me "for additional documents that are needed to process [my] request". Say what?

Let's digress for a moment, and look at what is required to make up a Privacy Act request.

Firstly, you need to reasonably identify yourself in a manner meaningful to the agency you're requesting records of. In my case, I provided my full legal name, date and place of birth, Social Security number, the number on my driver's license I had when crossing the border, and my address at the time. If that's not enough to identify me, I don't know what is.

Secondly, you need to identify what records you're looking for - employment and application records, for instance, or administrative records, or whatever. In my request, I asked for "all reports and other records concerning, relating to, or resulting from my transit thru [a border crossing] by car in [the month and year of the crossing] and resultant detention, search, and questioning by Border Patrol agents". Seems pretty straightfoward, if you ask me; it's the only time I've ever crossed the border, and the only interaction I've ever had with any part of CBP or it's components or their predecessors.

Thirdly, you need to either have your request notarized, or make what's known as a "Title 18 declaration" - swearing under penalty of perjury by signing that you are who you say who you are, et cetera. Again, I made the standard Title 18 statement, like I've used in numerous other requests to other agencies. It's a run-of-the-mill Privacy Act thing that everyone knows about.

That's all you need. You don't have to, under the FOIA and PA, say why you want any given records. Indeed, the Privacy Act gives one a nearly carte blanche right to request, receive, and review government records about one's self. That's why it exists, after all.

With me so far? Good.

Now, back to CBP's response. "According to FOIA guidance", they write, "we cannot process your request without a written letter or request regarding your issues/concerns, etc., accompanying your request." Excuse me? What part of my request wasn't clear to you?

It gets better - "Once received, it will be processed in the order of the receipt. Accordingly, we must first process similar completed requests previously received from other persons and organizations." That's a five-month run-around on their part. Bravo, ladies and gentlemen, bravo.

They continue, "Please forward all completed documents: Letter of request written in English as to what you are requesting, with original signature, Copies of all biographic documents - passport; driver's license, social security card, naturalization certificate, etc. Updated Request for Records Form, signed and dated." Oh, and for my "convenience", they enclosed the proper form for me "to complete and return".

Let's recap, shall we? First, let's posit that my passing thru the border crossing, my being searched, my being detained and questioned, generated, at the very least, some record in some computer system somewhere. Okay? Now, before I can see those records about me, I have to fill out a form specific to CBP, which isn't mentioned anywhere on their website (and send it to an address different than that on their website, unless I want to add an extra two months to their response) - a spurious "requirement" they didn't notice for, you know, five months. With that form - which includes nothing not included in my original request - I have to include an explanation as to why I'd like the records I have a right to. Oh, and they want copies of all of my "biographic documents".

And, keep in mind, this is after the big Federal initiative to make the FOIA and PA easier-to-use.

I spent a while pondering my next course of action, and eventually decided on a two-pronged approach: I wrote to them, refusing to comply with their demands, and asking that they not only explain and justify those demands in writing, but process my request as-is, within twenty working days, as the law requires. To provide motivation, I filled out the appropriate paperwork and requested the assistance of my congresswoman's staff in the matter.

Much to my surprise, they might have actually complied with the last part - I sent my letter to them on 14 March, and their response is dated 17 April - but postmarked the 23rd, and received a full eight days later. Surprise, surprise: "Based on the information you provided we have been unable to locate any records in the U.S. Customs and Border Protection database responsive to your request." In other words, they jerked me around for no reason at all and lied to me, maybe more than once - for nothing.

I'm not exactly holding my breath waiting for a response to my other points - explanation and justification for their absurd and arbitrary demands. Is it any wonder DHS received failing grades across the board in a congressional review? Not to me, it isn't. They may be taking steps to improve their FOIPA processing, and while those improvements are sorely needed, it remains to be seen whether they'll be real, measurable improvements, or ones that only exist on paper.


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