(DHS) Magical mystery tour (and why I need a lawyer)

The Minneapolis-St. Paul International Airport should be a sidebar to the story of the case against the “Minnesota men” that resulted in guilty pleas and verdicts last year. One of the “Minnesota men” who pleaded guilty and cooperated with the prosecution had worked on the tarmac at the airport in positions where he could have done serious damage. So did the “Minnesota man” who turned informant and was never charged in the case.

That’s a lot, but that’s not all. In “Prosecutors say member of alleged ISIL recruit’s defense team preached jihad,” Star Tribune reporter Stephen Montemayor noted in passing that local imams and Muslim “community leaders” had received a “behind-the-scenes security tour” in February at the Minneapolis-St. Paul International Airport. Montemayor mentioned the tour when he noted that Hassan Mohamud — “Sheikh Hassan” — had been “uninvited” from the tour.

What??? What tour?

That’s where Montemayor left matters, so I asked airport spokesman Patrick Hogan about it. Hogan gave me the courtesy of a prompt response, though he denied any knowledge of the tour. He also referred me to the Transportation Security Administration and to U.S. Customs and Border Protection. A TSA spokesman denied knowledge (wrongly, as it turned out). Several calls to CBP resulted in a bingo with midwest CBP spokesman Kristoffer Grogan in Michigan. Grogan called in response to my inquiries at the airport and emailed me the following explanation:

Per our conversation U.S. Customs and Border Protection (CBP) conducted a community engagement tour at the St. Paul International Airport on February 18th. The tour included roughly 20 community members from the greater Minneapolis area and was facilitated through the DHS Office of Civil Rights and Civil Liberties. The tour showed the participants the process that all arriving passengers go through when arriving at the Federal Inspection Services (FIS) area at Minneapolis St. Paul International Airport. CBP conducts these types of tours regularly as part of our outreach efforts to improve ties between CBP and our community members.

The tour was conducted by U.S. Customs and Border Protection leadership assigned to the Minneapolis St. Paul International Airport. I currently do not have a list of those who attended the tour. You would need to reach out to the DHS Office of Civil Rights and Civil Liberties for that information.

So I called the DHS Office of Civil Rights and Civil Liberties at the number provided by Grogan. DHS instructed me to email my inquiry to their public affairs address. I wrote with the subject “Request for information regarding security tour of MSP International Airport given to imams by CBP on February 18.” This was my request:

[The March 29] Star Tribune refers in passing to a behind the scenes security tour given to local imams and Muslim community leaders at the Minneapolis-St Paul International Airport [in February]. They report that Imam Hassan Muhamad was “disinvited” from the tour. I have confirmed the date/location/purpose of the tour with CBP midwest spokesman Kristoffer Grogan. He tells me that the tour was “facilitated” by the DHS Office of Civil Rights and has referred me to you for additional information regarding invitees and details regarding the tour.

I am following up on Mr. Grogan’s referral. I am seeking the information regarding the tour including: invitees, participants, tour guides, areas toured, and the nature of any security checks conducted before extending the invitations.

I received this ludicrously unilluminating response from DHS press secretary Marsha Catron:


We cannot comment on individual cases due to privacy concerns. However, the Department of Homeland Security does not at any time nor for any reason bar a participant from an event based on protected First Amendment activity.

If an event takes place at a secure facility, a security or background check may be run on an individual before he or she is allowed to enter a secure location.

She added an equally uninformative sentence for my “BACKGROUND use.” I wrote her back:

Marsha: I understand. This is to request the other information: invitees, attendees, areas of the airport that were toured, who conducted the tour and so on.

Thank you.

And again:

I am writing to make one more request for the additional information I sought earlier this week. Please give me the courtesy of a response.

No response.

In response to my inquiry, Ms. Catron advised me of the department’s procedure for submitting a Freedom of Information Act Request. I submitted my request under FOIA. Why this should have been necessary for the basic information sought is beyond me.

I received the following response by email attachment:

Re: 2016-CRFO-00069

May 11, 2016

Dear Mr. Johnson:

This is the final response to your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties (CRCL), dated April 03, 2016, and received by this office on April 05, 2016. You are seeking information and documents regarding the tour given to local imams and Muslim community leaders at MSP Airport on February 18, 2016 including invitees, participants, tour guides, areas toured, and the nature of any security checks conducted before extending the invitations.

CRCL has considered your request under the FOIA, 5 U.S.C. § 552 [i.e., the Freedom of Information Act].

A search of CRCL for records responsive to your request produced 9 pages that are responsive to your request. After review of those documents, I have determined that 0 pages will be released in their entirety. Portions of 9 pages will be withheld pursuant to exemptions of the FOIA as described below.

CRCL has applied FOIA exemptions to protect from disclosure

CRCL has applied Exemption 5 to protect from disclosure intra-agency documents that contain the recommendations, opinions, and conclusions of agency employees. The disclosure of these communications would discourage the expression of candid opinions and inhibit the free and frank exchange of information and opinions among agency personnel on important agency decision-making by having a chilling effect on the agency’s deliberative process.

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, the attorney-client privilege, and the attorney work-product 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 intra-agency 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 work-product privilege protects documents and other memoranda prepared by an attorney in contemplation of litigation. 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.

CRCL has applied FOIA Exemption 6 and to protect from disclosure the names, e-mail addresses, and phone numbers of DHS employees contained within the documents.

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.

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 Homeland Security, Washington, D.C. 20528, following the procedures outlined in the DHS regulations at 6 C.F.R. § 5.9. Your envelope and letter should be marked “FOIA Appeal.” Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia.

If you need to contact our office again about this matter, please refer to 2016-CRFO-00069. This office can be reached at 202-357-1218.


Enclosure(s): 9 pages

The nine pages were mostly redacted. Two pages listing the tour participants and their nationality are blacked out completely. The only possibly applicable FOIA exemption is 6, although I don’t think it applies. There is no legitimate privacy interest supporting the redaction of the tour participants. The text of the invitation, however, is provided:

The Department of Homeland Security (DHS) would like to invite you to participate in a tour of the Minneapolis-St. Paul International Airport as part of our ongoing efforts to engage with community leaders and members. During the event, participants will be provided with a step-by-step tour of our operations, designed to offer a greater understanding of airport processes and procedures. Throughout the event, we will discuss traveler expectations, rights, and procedures. Participants will have the opportunity to ask questions of representatives from DHS, U.S. Customs and Border Protection and the Transportation Security Administration….Participants will be met by airport officials and led into the secure area of the airport….

Please note that this event will be closed to the press and participants will not be allowed to take pictures or video recordings during the event.

I appealed the determination of my FOIA request. The administrative law judge remanded the determination to DHS for clarification because he “was unable to determine if the Agency properly applied the FOIA exemptions at issue.” Sixty days elapsed without response by DHS. “Because a reasonable amount of time has passed without further response,” he ruled in a letter dated January 17, 2017, “the Agency’s action must be viewed as final.”

Advising me of my appeal rights to the United States District Court for the District of Minnesota or the District of Columbia, he signed off on my appeal. I have exhausted my administrative remedies, as they say. The administrative law judge did not explicitly rule on DHS’s determination of my FOIA request. I kid you not.

I would like to appeal DHS’s treatment of my FOIA request in a lawsuit. The “golden rule” of FOIA provides: “An agency seeking to withhold information under an exemption to FOIA has the burden of proving that the information falls under the claimed exemption.” GC Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109, 1113 (9th Cir. 1994). DHS has done nothing to satisfy its burden in this case.

If I were to prevail in the appeal, my attorney would qualify for an award of fees and expenses in the discretion of the court. The only catch is that I need a lawyer. I don’t qualify for such an award representing myself. If you are a Minnesota attorney and might be willing to represent me, please write me at [email protected].

FOOTNOTE: I wrote about “Sheikh Hassan” on Power Line in “Sheikh Hassan’s retreat” and “A tale of five Muhammads.” The interjection “I kid you not” applies to him several times over.

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