Status of FEMA FOIA

Devvy Kidd
August 20, 2002

Back on February 19, 2002, I filed a Freedom of Information Act Request with FEMA regarding the deployment of one Tom Kennedy. If you are unfamiliar with this action, please see:

http://www.devvy.com/femafoia_20020629.html

On March 12, 2002, I received a response from FEMA |Click Here| letting me know it was being worked.

On June 6, 2002, I finally received the final response from FEMA |Click Here|

I immediately fired off an appeal:

Devvy Kidd
P.O. Box 60543
Sacramento, California 95860

Certified Mail Receipt: 7001 2510 0000 2855 8570

June 10, 2002

Headquarters FOIA Officer
Federal Emergency Management Agency
500 C Street, S.W. Room 840
Washington, DC 20472

Re: FOIA Appeal

Sir/Madame:

Enclosed please find my original FOIA, subsequent follow ups and a final response from Ms. Eileen J. Leshan, in which she states that "no responsive documents exists within the files of the FEMA relative to your request."

I am appealing this finding based on the attached article quoting a FEMA spokesman who states Mr. Tom Kennedy, employed by FEMA, was indeed deployed to NYC.

If this information from FEMA is accurate, then the documents I  requested from FEMA must exist, contrary to the response I received from Ms. Leshan. Therefore, I am appealing and request that the "responsive" records be provided to me under my original FOIA.

Very truly yours,

Devvy Kidd

* * *

FEMA has 20 workdays from the date of receipt to respond to an appeal. On August 16, 2002, I sent a reminder letter to them in the hope that I don't have to file yet another federal lawsuit to get an answer:

Devvy Kidd
P.O. Box 60543
Sacramento, California 95860

August 16, 2002

Certified Mail receipt: 7001 2510 0000 2855 8440

Headquarters FOIA Officer
Federal Emergency Management Agency
500 C Street, SW, Room 840
Washington, DC 20472

Re: FOIA Appeal

Sir/Madame:

On February 19, 2002 I filed a FOIA with FEMA office. On April 19, 2002, I sent a letter of inquiry as to status.

On June 6, 2002, I received a letter from a Ms. Eileen Leshan with a response that indicated your office has no responsive documents.'

On June 10, 2002, I filed an appeal with your office. This correspondence was signed for on July 1 2002 by E. Leshan.

According to FEMAs web site on FOIAs, (http://www.fema.gov/library/efoia01.shtm) the following applies:

Sec. 5.55 Appeal within FEMA of denial of request.

     (a) A requester denied access, in whole or in part, to FEMA records may appeal that decision within FEMA. Address all appeals to the Headquarters FOIA Officer, Federal Emergency Management Agency, Washington, DC 20472, regardless of whether the denial being appealed was made at Headquarters, in a field office, or by a Regional Director.

     (b) An appeal must be received in the Headquarters FOIA Office no later than thirty calendar days after receipt by the requester of the initial denial.

     (c) An appeal must be in writing and should contain a brief statement of the requester's reason(s) challenging the cited exemption(s) as improper, and should enclose copies of the initial request and denial. The appeal letter should bear the legend, ``FREEDOM OF INFORMATION APPEAL,'' conspicuously marked on both the face of the appeal letter and on the envelope. FEMA has 20  workdays after the receipt of an appeal to make a determination with respect to such appeal. The 20-workday time limit shall not begin to run until the Headquarters FOIA Officer receives the appeal. Misdirected appeals should be forwarded promptly to that office.

     (d) The Headquarters FOIA Officer will submit the appeal to the General Counsel for final administrative determination.

     (e) The General Counsel shall be the deciding official on all appeals except in those cases in which he or she made the initial denial. If the General Counsel made the initial denial, the Deputy Director  will be the deciding official on any appeal from that denial. In the absence of the Deputy Director, or in case of a vacancy in that office, the Director may be the deciding official or designate another FEMA official to perform the Deputy's functions.

     (f) If an appeal is filed in response to a tentative denial pending locating and/or examination of records, as described in Sec. 5.53(c), FEMA will continue to search for or examine the requested records and will issue a response immediately upon completion of the search or examination. Such action in no way suspends the time for FEMA's response to the requester's appeal that FEMA will continue to process regardless of the response under this paragraph.

     (g) If a requester files suit pending an agency appeal, FEMA nonetheless will continue to process the appeal, and will furnish a response within the 20 workday time limit set out in paragraph (c) of this section.

    (h) If, on appeal, the denial of the request for records is upheld in whole or in part, the General Counsel will promptly furnish the requester a copy of the ruling in writing within the 20-workday time limit set out in paragraph (c) of this section except as provided in Sec. 5.55.

The 20 workday time limit for your response to my appeal has passed. I would request my appeal be immediately. Otherwise, I am prepared to file suit in Federal District Court to compel production of the information I have requested.

Thank you.

Devvy Kidd

* * *

As I said in my earlier piece back in June (http://www.devvy.com/femafoia_20020629.html), a phone call into a radio talk show has become 'fact' on a thousand web sites. In order to try and get proof of such a serious allegation, I began the FOIA process.

However, until I get the documents I have requested, as far as I'm concerned, Mr. Kennedy's deployment is still a question mark. That also brings me to this school of thought:

Please note that in the piece by Jon Dougherty (the URL above), note this phrase:

        'FEMA-sponsored search and rescue team spokesman named Tom Kennedy'

At this point, I don't know if Tom Kennedy works for FEMA or is a contract employee.

FEMA, according to their spokesman, has 22 search and rescue teams nationwide. I have been over to FEMAs site and read up on their operations. They don't have enough payroll employees to cover sporadic 'events,' such as a tornado, flood or 9-11, so they use outside contractors. This makes sense to call up Smith Search and Rescue (fictitious name) out of Boston to help with 9-11, simply because FEMA can't budget thousands of specialized workers on a full time basis.

It may very well be that this Tom Kennedy works for an outside contractor or could even own the company. I don't know. In my appeal I deliberately used this phrase "Mr. Tom Kennedy, employed by FEMA..." I want FEMA to come back and tell me yes, he works for FEMA or no, he works for an outside contractor.

If it turns out that Mr. Kennedy works for FEMA, then they will have his deployment records. If they refuse to give them up, I'll have to file another federal lawsuit.

If it turns out that Mr. Kennedy is an outside contractor, I can still FOIA his records from the company since they are under a government contract.

One thing is for certain: There is zip proof that a Mr. Tom Kennedy was deployed by FEMA or an outside company to NYC on September 10, 2001.

There was a great deal of confusion and massive shock going on the first 72 hours after the morning of 9-11.

I am hopeful that my effort through the FOIA will produce a definitive answer so we will know truth from rumor. Hard proof is always better than a rumor.