U.S.

Department of Homeland Security

500 C Street, S.W. Mail Stop 3172
Washington, DC 20472-3172

February 26, 2018

SENT VIA E-MAIL TO: ben.berwick@protectdemocracy.org

Benjamin L. Berwick
Counsel
The Protect Democracy Project
2020 Pennsylvania Ave NW
Washington, DC 20006

Re: FOIA Litigation Case Number 2018-FELI-00002

FEMA FOIA Case Number 2018-FEFO-00048

Dear Mr. Berwick:

This is the first interim response to your Freedom of Information Act (FOIA) request to the
Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA).
You submitted a FOIA request dated October 6, 2017 to the FEMA. The request was received
by FEMA on October 8, 2017, and acknowledged by this office on October 11, 2017. As it
relates to your request (2018-FEFO-00048), you are seeking a copy of the following:

1. Communications between FEMA and the Executive Office of the President (EOP), the
Office of the Secretary of the Department of Homeland Security (DHS), or the DHS
Office of the Public Affairs (OPA) regarding information provided on FEMA’s website
about the federal government’s response to Hurricane Maria and/or recovery efforts in
Puerto Rico;

2. Records on the decision to remove certain statistics related to Puerto Rico’s recovery
from Hurricane Maria from FEMA’s website; and,

3. 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 your agency uses 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.

The timeframe for this request is October 1, 2017 through October 6, 2017.

On October 11, 2017, subsequent to a telephone conversation with this office, you modified your
request to clarify that you are no longer seeking item 3 above.
Benjamin L. Berwick Page 2
FOIA Litigation Case Number 2018-FELI-00002
FEMA FOIA Case Number 2018-FEFO-00048

For this first interim release (February 26, 2018), FEMA reviewed 732 pages of records located
during a search of FEMA’s Office of External Affairs. Of the 732 pages, 544 pages were
deemed to be non-responsive as either a duplicate record or as beyond the scope of the request.
After carefully reviewing the remaining 188 pages, I have determined that 65 pages of the
records are releasable in their entirety, 83 pages are partially releasable, and 2 pages are withheld
in their entirety pursuant to Title 5 U.S.C. §§ 552(b)(5) and (b)(6), FOIA Exemptions 5 and 6.

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, we determined that portions of
the responsive documents qualify for protection under the following privilege:

• Deliberative Process 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.

FOIA Exemption 6 exempts from disclosure of 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.

To date, including this release, FEMA has produced a total of 148 pages of responsive records in
connection with The Protect Democracy Project, Incorporated v. U.S. Department of Homeland
Security; Federal Emergency Management Agency; and The Office of Management and Budget,
U.S. District Court for the District of Columbia, Case Number 1:17-cv-02440-RC. The
remaining 38 pages contain equities that are of interest to the White House and DHS; as such, we
are consulting with their office regarding the releasibility of those pages. Upon completion of
the consultation we will provide you with our final response letter and any additional releasable
records.
Benjamin L. Berwick Page 3
FOIA Litigation Case Number 2018-FELI-00002
FEMA FOIA Case Number 2018-FEFO-00048

If you have any questions concerning this matter, you may call Department of Justice litigation
counsel Matthew Skurnik at (202) 616-8188 or electronically at Matthew.Skurnik@usdoj.gov
and refer to 1:17-cv-02440-RC.

Sincerely,

Eric Neuschaefer
Chief, Disclosure Branch
Information Management Division
Federal Emergency Management Agency
Department of Homeland Security

Cc (via email):
Matthew Skurnik

Enclosure: Bates numbered pages FEMA 000001-000148

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