Downtime of visa lottery application site

To Whom It May Concern:

This is a request under the Freedom of Information Act.

Please be advised that, unless otherwise noted, the date range of this request is January 20, 2017 to the date of this request. We request the following records:

1. Documents sufficient to show how long the portion of the U.S. State Department's website on which individuals apply for the immigrant visa lottery, located at dvlottery.state.gov, has been unusable due to "maintenance" as of October 15. This portion of the site has been unusable for "maintenance" for some time including October 15, and we are seeking documents sufficient to show the start date of the continuous service interruption that includes October 15. The site in question calls the program "Electronic Diversity Visa Lottery." It may or may not be a program of the Bureau of Consular Affairs, but to the extent there are other immigrant visa lottery programs, this part of this FOIA request, and all other parts of this request, seek records pertaining to *all* immigrant visa lottery websites maintained by the Department of State. We also seek:

2. Documents sufficient to show all service interruptions, including the start and end dates and times of said interruptions, on that portion of the State Department's website and other visa application portions of state.gov since January 20, 2017, and documents sufficient to show the reason for each interruption of service.

3. Documents sufficient to show the period or date window each year that the immigrant visa lottery is accepting applications. If the window(s) has/have changed since January 19, 2017, we request documents sufficient to show the previous window dates, the current window dates, and all communications that constitute or contain directives to change the window, or deliberations about changing the window. (Please see the bottom of this request for a summary of what is and is not permitted to be withheld by the "deliberative process" exemption to the FOIA.)

4. Documents sufficient to show the number of immigrant visas granted from any and all lottery processes during calendar years 2015, 2016, and 2017 through January 19.

5. Documents sufficient to show the number of immigrant visas granted from any and all lottery processes from January 20, 2017 to the date of this request.

6. All written communications (including electronic and otherwise) to and from Sec. Rex Tillerson that regard the inaccessibility or maintenance of the visa application web page(s), including the lottery application page. This includes, if extant, any discussion of what is wrong with the lottery site and what is/was required to fix it.

7. All written communications (including electronic and otherwise) to and from anyone who reports directly to the Secretary of State (Please refer to the Department of State's most current organizational chart), which regard the inaccessibility or maintenance of the visa application web page(s), including the lottery application page. This includes, if extant, any discussion of what is wrong with the lottery site and what is/was required to fix it.

8. All written communications (including electronic and otherwise) to and from any Under Secretary or Assistant Secretary who might have had occasion to know or deal with this issue, which regard the inaccessibility or maintenance of the visa application web page(s), including the lottery application page. (The FOIA responder will have to determine which Under Secretaries or Assistance Secretaries might have had occasion to know or deal with this issue.) This includes, if extant, any discussion of what is wrong with the lottery site and what is/was required to fix it.

9. All written communications (including electronic and otherwise) to and from any State Department staff member and any current or former presidential advisor--including but not limited to Stephen Miller, Steve Bannon, Julia Hahn, or Sebastian Gorka--which regard the visa application web page(s), including the lottery application page. We request that the FOIA responder also search for messages to and from any private email accounts controlled by any of these persons for messages that regard the aforementioned topic. This is clearly state business and to the extent any individuals used private accounts to conduct it, those messages are subject to FOIA.

10. All written communications (including electronic and otherwise) to and from any State Department staff member and any representative of the following agencies/governmental organizations, which regard the visa application web page(s), including the lottery application page: National Security Council; Department of Homeland Security; Homeland Security Council; Domestic Policy Council. We request that the FOIA responder also search for messages to and from any private email accounts controlled by any representative of these organizations, for messages that regard the aforementioned topic. This is clearly state business and to the extent any individuals used private accounts to conduct it, those messages are subject to FOIA.

The requesters of this information are journalists working for The Intercept under Washington, D.C. bureau chief Ryan Grim. The Intercept is an organization “primarily engaged in disseminating information.” Am. Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004). The Intercept is, as explained in this standard, a “representative of the news media” because it “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into distinct work, and distributes that work to an audience.”

A FOIA request shall be granted expedited processing when the requester demonstrates a “compelling need” to inform the public about the matter at issue in the FOIA request. Stated in another way, the requester must show an “urgency to inform the public concerning actual or alleged Federal Government activity.” U.S.C. § 552(a)(6)(e)(v)(II); See also: Al-Fayed at 306.

There exists a clear urgency to inform the public about this issue. Members of a public that would be granted entry into the U.S. even under President Trump's more stringent vetting requirements are being denied the chance to apply for entry into this country while the site is offline. But it is not just the immigrant public that is harmed with delaying the release of the information at issue in this request. To the extent the lottery site is offline, the American public has a right to know why. American citizens managing American companies are trying to hire skilled immigrants, and their prospective employees are finding a de facto denial of entry regardless of qualification. Every day the lottery site is down is a day that immigrants who intend to follow lawful U.S. practices to obtain entry are denied their right to try to enter. In other words, the law about entry needs to be changed--with all the public debate that comes with that process--or the State Department needs to follow the current law, which provides for a functioning lottery and thus application process. The public has an urgency to know whether the law is being followed regarding allowing immigrants to apply for entry. To the extent the site is already scheduled to re-open on October 18, allowing the public to know why the previous downtime occurred may serve to lengthen the upcoming window to allow more entries, or it may prompt the Trump administration to increase the total number of spots available in the lottery. It may help publicize issues that teams at the State Department may have had, so as to provide more resources to prevent such down time in the future. Or it may reveal a political motivation behind the site closure, which some law enforcement bodies have a clear urgency to learn.

There is further urgency due to the need to inform visa applicants who may believe their applications submitted between Oct. 3 and Oct. 10, 2017 may have had their application invalidated, according to the https://www.dvlottery.state.gov site. These individuals may not be aware of the issue and would need to resubmit their applications. Public awareness of this problem may help potential immigrants and visa applicants become aware of their need to resubmit their materials to the Deptartment of State.

In Wadelton v. Department of State, 13-0412 ESH, 2013 WL 1760853 (D.C.C. Apr. 25, 2013), the District Court in the D.C. Circuit noted that “courts have found a ‘compelling need’ to exist when the subject matter of the request was central to a pressing issue of the day.”

The requesters are lifelong journalists and are working for editors who share their belief that there is no more pressing issue of the day than the immigration policies put forward by the Executive branch of the U.S. government under President Donald J. Trump. These policies are markedly different than those set forth by his predecessors in at least a generation and maybe two. The policies and discussion about them make up a large portion, maybe the largest single category, of the public statements issued by President Trump. And immigration policies are also a divisive issue among the American public. Shedding light on how the policies are enforced and how the policies came to be is an essential function of the news industry in this age.

We expect a response to my request for expedited processing within 10 calendar days, as the statute requires.

We would caution the responder to adhere to the limited definition of Exemption 5 to the FOIA, regarding "predecisional-deliberative" material. Below I have included a guide derived from the Department of Justice's guide to FOIA caselaw, compiled by the DOJ Office of Information Policy.

The predecisional-deliberative exemption:
- Can be used to withhold “advice, recommendations and opinions”
- CANNOT BE USED to withhold statements of fact. So if someone compiles a fact-based report, the only redact-able parts are those parts which are the opinion of the author.
- NO LONGER APPLIES if a decision-maker “clearly adopts the position set forth” in the deliberative document in question.
- “Final opinions” and “post-decisional” documents explaining an agency position are not exempt.
- Also DOES NOT APPLY if the original “source” of the information is not the government agency
- To withhold a piece of information, disclosure would have to “adversely affect the purposes of the exemption,” and to determine that, courts ask “whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.”

Last but not least, we implore the FOIA responder to remember that information that is exempt must, according to well-established caselaw, be redacted as individual pieces of information, and not withholding whole sections or pages unless there exists justification to redact an entire section or page. For every redaction, the responder must cite the specific exemption he or she is citing in order to redact.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes. In the event that there are fees, we would be grateful if you would inform us of the total charges in advance of fulfilling our request. We would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not. Any e-mail questions may be directed to the email this message was sent from, or sent to hey@brandonsmith.com. Any questions more suited to a phone call may be directed to Brandon Smith, at 740-505-0038, but please leave a message and Mr. Smith will return your call.

Thank you in advance for your anticipated cooperation in this matter. We look forward to receiving your response to this request within 10 calendar days if a request for expedited processing is granted, and 20 business days if not, according to statute. If a request for expedited processing is not granted, we intend to appeal that decision to prevent further delays.

Sincerely,

Brandon Smith and Lydia Beyoud

Just a reminder that a request for expedited processing by statute should be considered and responded-to within 10 calendar days. We are now at 14 calendar days.

Thank you,
Brandon Smith

Dear U.S. Department of State FOIA office:

I am herein appealing your denial of my request for expedited processing.

But first, I would state a thanks for assigning me my status as a representative of the news media. I am prepared to pay any cost of copying/storage media that you assess for this request, if the media is digital in nature — for example, a CD/DVD-ROM, or a flash drive. Please inform me of any perceived need to provide records in a non-digital format prior to deciding to provide such paper documents.

Upon reviewing your included document that outlines your standard for granting expedited processing, I have determined that I, in fact, meet the standard, contrary to your staff decision.

I only need to meet one of the four criteria. The below assertions are made, to the best of my knowledge, to be true and correct.

1. I believe I meet criteria (1) because, first, criteria (1) does not specify that the person in question must be a U.S. person. Second, in a scenario in which a person looking to emigrate to the United States must do so because of a threat to their life or physical safety, he or she may not be able to participate in another immigration program. That’s because other programs have their own restrictions, but also because several of these programs have been severely limited in recent months. Thus, I am investigating the historic availability of one program, the Diversity Immigration Lottery. The standard for meeting criteria (1) is a “reasonable expectation” that life or bodily harm is at risk somewhere. I believe the high possibility meets this standard.

2. I believe I meet criteria (2) because, first, I am an “individual primarily engaged in disseminating information.” I am a journalist with eleven years of documented journalistic publications, and am currently primarily employed in journalism pursuits with several established news organizations, such as The Intercept, The Nation Investigative Fund, and ProPublica. These organizations must all be classified as “news media” because each “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into distinct work, and distributes that work to an audience.” Am. Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004).

A FOIA request shall be granted expedited processing when the requester demonstrates a “compelling need” to inform the public about the matter at issue in the FOIA request. Stated in another way, the requester must show an “urgency to inform the public concerning actual or alleged Federal Government activity.” U.S.C. § 552(a)(6)(e)(v)(II); See also: Al-Fayed at 306.

In Wadelton v. Department of State, 13-0412 ESH, 2013 WL 1760853 (D.C.C. Apr. 25, 2013), the District Court in the D.C. Circuit noted that “courts have found a ‘compelling need’ to exist when the subject matter of the request was central to a pressing issue of the day.”

One of the most “pressing issue(s) of the day”—as judged by the number of news stories published on this relative to other topics concerning the federal government—is the Donald J. Trump administration’s immigration policy. To be more specific, the most “pressing issue” is changes to previous policy, as implemented by the Department of State. This criteria, (2), requires both (a) and (b) standards to be met. Standard (b) is met handily, as the business of running the immigration lottery is the business of the Department of State, a body of the federal government. Standard (a), as you stated, means that “a particular value” of the information would be lost if not disseminated quickly.

President Trump has been recommending, via posts to Twitter and maybe other manners, that the diversity visa lottery be closed or at least amended. In response, officials, likely including members of Congress, and staff at the Department of State, are—right now—investigating the possibility of altering the program. The information I asked for, in my FOIA request at issue, is crucial for both the public to know, as well as these particular government officials to know, before any official makes a decision, or even a recommendation, as to what to do with this program.

My request, if responded-to properly, will show whether the Donald J. Trump administration had been planning to end or substantially change the program prior to the recent New York City terrorist attack. Denying the public the right to know about a prior plan to shutter this program denies them the right to judge the intent of the President or Congress’ current push to shutter it. Thus, at the point any decision or recommendation is made about this program, the value of the information sought by my FOIA request has significantly decreased, if not disappeared entirely—because at that point, the public will have lost the ability to petition its representatives based on all information material to this matter. This external “clock” continues to tick with each passing day before a recommendation is made by a government official.

3. I believe my request meets criteria (3) because, to the extent any member of the public has standing to sue the State Department for changing the program outside the scope of current guidelines, or has standing to sue for not keeping open the lottery at various points in 2017 that are required by statute, then, denying the prompt release of this information denies these members of the public their due process rights. Should officials decide to alter or shutter the program, an open suit by a member of the public could delay the alteration. But a member of the public (who would otherwise have standing) cannot sue without without document proof that the lottery was down at certain times, or that internal debate about the lottery, and not technical difficulties, kept it from operating. (To the extent that latter scenario might be borne out by documents.)

4. I believe my request meets criteria (4) because humanitarian crises throughout the world inspire applications to immigrate to the United States, a place of relative peace and human safety. This includes crises ultimately assisted by actions of the United States, such as arms sales to Saudi Arabia that fuel violence, and by extension famine, in Yemen. Since other immigration programs to accept refugees from humanitarian crises have arbitrary caps on the number of individuals or families accepted, and/or other requirements on the technical abilities of the person(s), it follows that any alteration to the lottery program would necessarily affect some applicants using this lottery program to escape a humanitarian crisis. I would advise again that the statute does not specify that an affected person has to be a “U.S. person.”

I would further advise that only one of the four criteria listed above has to be met for a request for expedited processing to be approved. I believe I met all four.

Thank you for your consideration.

Sincerely,
Brandon Smith