Case 1:08-cv-01046-JDB Document 24 Filed 12/12/2008 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

DEFENDANT’S STATUS REPORT

Pursuant to the Court’s Order dated November 24, 2008 (Document 22), Defendant, U.S.

Department of Homeland Security (“DHS”), respectfully submits this status report regarding the

processing and release of e-mails responsive to the second part of Plaintiff’s request under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended. DHS hereby reports the total

number of e-mails sent and received by each of the 25 Customs and Border Protection (“CBP”)

officials at the national and field level office level who have been identified as being involved in the

border fence placement decision for all sectors. DHS also advises the Court of the anticipated

completion date of the extraction of the e-mails from the system backup tapes.

DHS is also filing a supplemental declaration as part of this status report. See Ex. A

(Supplemental Declaration of Sonia Yadav (“Suppl. Yadav Decl.”), Enterprise Messaging

Operations Lead, Data Center Operations Branch, Enterprise Data Center Operations Group,

Enterprise Data Management & Engineering Division, Office of Information & Technology

(“OIT”), DHS/CBP). This declaration supplements Ms. Yadav’s original declaration (“Yadav

Decl.”) (Document 21-2), which was filed with the Court as part of the Joint Status Report and
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Proposed Disclosure Schedule (“Joint Status Report”), on November 21, 2008 (Document 21). See

Suppl. Yadav Decl., ¶ 3.

DHS reports that the number of potentially responsive e-mails is significantly greater than

the initial estimation because CBP is able to retrieve a much greater number of e-mails from the

Outlook e-mail system than the Lotus Notes system previously used by the agency. DHS further

reports that there should be no delay in the completion of the process of extracting potentially

responsive e-mails from the CBP’s Lotus Notes and Outlook systems, as detailed in the Joint Status

Report. DHS cannot, however, determine at this time whether or not the number of responsive e-

mails will be much greater than the 10,000 estimation contained in the Joint Status Report, and the

non-exempt portions of which CBP will begin to disclose at a rate of 1,000 per month, commencing

on February 20, 2009, pursuant to the Court’s Order dated November 24, 2008.1 CBP will be able

to meet the current disclosure schedule if 5% of the total e-mails sent and received by the 25

officials relate to the fence placement issue. CBP offers to file a status report in six months, or by

June 12, 2009, advising the Court and Plaintiff of the actual percentage of responsive e-mails for the

officials whose e-mails will have been processed by that date. If the percentage of responsive e-

mails is greater than 5%, CBP will propose a revised disclosure schedule.

I. E-mail Count

In her supplemental declaration, Ms. Yadav provides an initial estimate of the total number

of potential e-mails that are responsive to the second part of Plaintiff’s FOIA request, and offered

an explanation of OIT’s procedures and capabilities that detail the process by which OIT identifies,

1
The initial estimation assumed that all of the e-mails for the affected officials related to
the fence placement issue; however, it is unlikely that every e-mail sent and received by the 25
officials over a year and a half period of time related to this issue.

2
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extracts, and searches e-mails in the CBP database. See Suppl. Yadav Decl., ¶ 3. Ms. Yadav further

explains that approximately 25 CBP officials at various levels of CBP’s organizational hierarchy

have been identified as being involved in deliberations over fence placement decisions. See id. at

¶ 4. Ms. Yadav identifies three distinct phases for the search and location of potentially responsive

e-mails for Plaintiff’s request. Id. Ms. Yadav has completed the first phase of that search process,

which consisted of a general search of the CBP e-mail system which allowed her to identify the total

number of e-mails sent and received by the 25 individuals during November 2006 to March 2008.

Id.

The 25 CBP officials have potentially responsive e-mails in both Lotus Notes and Outlook,

the two e-mail systems that were in place during the time period in which potentially responsive e-

mails may be found. See Suppl. Yadav Decl., ¶ 5. Ms. Yadav reports that she has completed an

initial search for all 25 officials in Lotus Notes and determined that 1,648 e-mails sent or received

by those 25 officials have been captured in the CBP e-mail system. Id. In addition to conducting

a preliminary search of Lotus Notes, Ms. Yadav has also completed a preliminary Outlook search

of the total amount of e-mails sent or received by the 25 individuals. Id. at ¶ 6. After conducting

a general search for all e-mails sent or received in Outlook, Ms. Yadav has determined that

approximately 210,000 e-mails sent or received by the 25 individuals have been captured in the

system. Id. This number of potentially responsive e-mails is much higher than the initial estimate

of 10,000 potentially responsive e-mails, which was based on estimates determined from a search

of the Lotus Notes system. Id.

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Ms. Yadav explains that she was unaware that the number of retrievable e-mails in Outlook

was significantly greater than those in Lotus Notes until she was able to run a general search of both

e-mail systems. See Suppl. Yadav Decl., ¶ 7. Some of the 25 individuals who were not “journaled”

in the Lotus Notes system appear to have been “journaled” in the Outlook system, which helps to

explain why the total number of retrievable e-mails in Outlook is considerably greater than the

number of retrievable e-mails in Lotus Notes. Id. Additionally, the 25 individuals are likely to be

above-average e-mail users, which also accounts for the higher volume of retrievable e-mail in the

Outlook system. Id.

Ms. Yadav’s general search confirms her conclusion, as stated in her first declaration, that

the keyword search should be done in the third phase of the search for, and processing of, e-mails

responsive to the second part of Plaintiff’s FOIA request. See Yadav Decl., ¶ 14; Joint Status

Report, at pp. 5-6. Specifically, the keyword search will need to be done after all potentially

responsive e-mails for each of the 25 officials have been extracted from the two agency e-mail

systems. See Suppl. Yadav Decl., ¶ 8. In addition to the general search described above, Ms.

Yadav also performed a keyword search of the subject line of the potentially responsive e-mails in

both Lotus Notes and Outlook and did not receive any positive hits for the search terms entered. See

id. As a result, CBP will need to do a keyword search for terms embedded in the body of each e-

mail in order to locate e-mails that are responsive to Plaintiff’s request. Id. Accordingly, Ms. Yadav

explained that it is necessary to first extract all potentially responsive e-mails for each official before

running a keyword search in the body of each e-mail to find the e-mails that are responsive to

Plaintiff’s request. See id.

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II. Estimated Completion Date of Extraction Process

Ms. Yadav has determined that the process of extracting the 210,000 potentially responsive

e-mails will not take any longer than the estimated time period stated in the Joint Status Report (p.

5). Specifically, Ms. Yadav estimates that the extraction and search process to determine which e-

mails are responsive to Plaintiff’s request will take between four and eight months. See Suppl.

Yadav Decl., ¶ 9. After running a general search of both Lotus Notes and Outlook e-mail systems,

Ms. Yadav continues to estimate that she will be able to complete the extraction and search process

for all e-mails of the 25 individuals stored in the CBP e-mail system within four to seven months.

Id. As Ms. Yadav stated in her original declaration, the average extraction process typically takes

between 40 and 80 hours for one e-mail user, though in rare cases the extraction process has lasted

as long as three weeks for a user with greatly above-average e-mail use. Id. As such, Ms. Yadav

estimates that all extracted e-mails should be ready for keyword search and processing by May 31,

2009. Id.

III. Effect of E-mail Count on Disclosure Schedule

DHS cannot determine at this time whether the number of responsive e-mails will be much

greater than the 10,000 estimation contained in the Joint Status Report, and the non-exempt portions

which CBP will begin to disclose at a rate of 1,000 per month, commencing on February 20, 2009,

pursuant to the Court’s Order dated November 24, 2008.2 CBP will be able to meet the current

disclosure schedule if 5% of the total e-mail traffic relating to the 25 officials relates to the fence

placement issue. CBP offers to file a status report in six months, or by June 12, 2009, advising the

2
The initial estimation assumed that all of the e-mails for the affected officials related to
the fence placement issue; however, it is unlikely that every e-mail sent and received by the 25
officials over a year and a half period of time related to this issue.

5
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Court and Plaintiff of the percentage of responsive e-mails for the officials whose e-mails will have

been processed by that date. If the percentage of responsive e-mails is greater than 5%, then CBP

will propose a revised disclosure schedule.

Specifically, Ms. Yadav explains that, having completed the initial search of all Lotus Notes

e-mails captured in the system for the 25 individuals, she will process those e-mails first before

moving on to those e-mails captured in the Outlook system. See Suppl. Yadav Decl., ¶ 10. If

certain CBP officials within the 25 have more responsive e-mail than others after completing the

extraction and search in the Lotus Notes system, Ms. Yadav will adjust the extraction and search of

all Outlook e-mail in order to focus on those users who will likely have the most e-mails responsive

to Plaintiff’s request within the Outlook system. Id.

In order to determine what percentage of the potentially responsive e-mails will ultimately

be responsive to Plaintiff’s request at this time, Ms. Yadav would need to extract the messages and

run a keyword search within the body of each e-mail. See Suppl. Yadav Decl., ¶ 11. This is the

process that will be performed in the third phase of the processing of the e-mails detailed in the Joint

Status Report (pp. 5-6). Based on Ms. Yadav’s estimate, a FOIA specialist who receives extracted

e-mails that have been searched by keywords in the body of the e-mail will be able to process

between six and eight e-mail users a month, depending on the volume of e-mail use for each user.

Id. The FOIA specialist will be able to run a keyword search through all extracted e-mails and print

the responsive e-mails, or run an additional keyword search without the need to run another

extraction. Id. In any event, if the percentage of responsive e-mails is about 5% of all potentially

responsive e-mails sent or received by the 25 officials, then CBP expects it will be able to meet the

disclosure deadlines set in the Court’s Order dated November 24, 2008.

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Respectfully submitted,

/s/
JEFFREY A. TAYLOR, D.C. BAR # 498610
United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. BAR # 434122
Assistant United States Attorney

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division, Room E-4806
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
John.Interrante@usdoj.gov

Of Counsel:

Simon Fisherow, U.S. Customs and Border Protection

Susan Shama, U.S. Customs and Border Protection

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Exhibit A
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