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Long v. Department of Homeland Security

United States District Court, District of Columbia

June 29, 2015

SUSAN B. LONG, et al., Plaintiffs,



Plaintiffs Susan B. Long and David Burnham are professors at Syracuse University and co-directors of the university's Transactional Records Access Clearinghouse ("TRAC"). In November 2013, Long and Burnham, on TRAC's behalf, lodged a Freedom of Information Act ("FOIA") request with Immigration and Customs Enforcement ("ICE"), a bureau of the Department of Homeland Security ("DHS" or the "Department"). The request sought all data from three large databases maintained by ICE and broader electronic data maintained by U.S. Customs and Border Protection. Long and Burnham also asked to be classified as representatives of an educational institution and the news media, which would entitle them to reduced FOIA processing fees. In support of their fee classification request, they explained that TRAC regularly analyzes and distills data obtained from federal agencies into reports on government operations in areas of public interest, including immigration enforcement, which are published on TRAC's website and through other means.

Although ICE's FOIA office had previously treated TRAC as both an educational and news media requester, this time it denied Long and Burnham's request, claiming they had not adequately explained how the particular information they sought would serve TRAC's educational and journalistic missions. Long and Burnham sued DHS to overturn ICE's determination, and both sides have moved for summary judgment. While ICE might object to the breadth of TRAC's FOIA request and question the originality and accuracy of its research reports, denying it preferred requester status is not the way to handle those concerns. Long and Burnham adequately justified their request for both educational and news media status. The Court will therefore grant their motion for summary judgment and deny the Department's.

I. Background

In November 2013, Long and Burnham filed a request under the Freedom of Information Act, 5 U.S.C. § 552, seeking all data from three separate ICE databases: (1) the Enforcement Integrated Database ("EID"), a shared, operational database within ICE containing information on the detention and removal of undocumented immigrants, including their biographical data, criminal history, and encounters with law enforcement agents; (2) the Integrated Decision Support System, which contains selected data drawn from the larger EID; and (3) the General Counsel Electronic Management System, a legal case management database used by ICE attorneys. The request also sought unspecified Customs and Border Protection data libraries and repositories.[1]

In their FOIA request, Plaintiffs also asked to be charged reduced processing fees as news media and educational institution requesters. Compl. ¶ 17; 5 U.S.C. § 552(a)(4)(A)(ii)(II).[2] In support of their request, Plaintiffs explained:

TRAC is a research data center at Syracuse University, and under the direction of its co-directors, Long and Burnham, carries out an active program of scholarly research. As its name implies, TRAC as part of its educational and service mission also serves as a clearinghouse and regularly responds to inquiries from the press, scholars, public interest groups, and other members of the public on where to find government information and the specific types of information available. One of our specialties is computerized federal databases maintained by agencies to record day-by-day activities required for managing the agency and reporting on its performance to various oversight bodies. TRAC actively seeks to promote public understanding of the operation of the federal government's immigration enforcement programs through the gathering and dissemination of this information. At TRAC, we actively gather information of interest to the public, transform this information utilizing our editorial and research expertise into various works-including computerized knowledge bases and reports-and make these works available to the public. Recent TRAC reports on immigration issues can be viewed at:

Id. On numerous previous occasions, ICE and other divisions of DHS had classified Plaintiffs, acting on behalf of TRAC, as news media and educational institutional requesters. E.g., Pls.' Opp'n & Cross-Mot. Summ. J. Exs. B-D (letters from ICE granting preferred requester status). This time, however, ICE indicated that it would treat Plaintiffs as "non-commercial" requesters. Decl. of Fernando Pineiro, Sept. 4, 2014, Ex. 2 ("Pineiro Decl."). After Plaintiffs appealed that designation, ICE changed its conclusion, finding that Plaintiffs should be charged even higher fees as commercial requesters. Id . Ex. 5 at 3. Following an exchange of letters, ICE reiterated its determination that Plaintiffs were commercial requesters. Id . Exs. 6, 7. Plaintiffs then brought this suit alleging violations of FOIA and the Administrative Procedure Act, and both parties have now moved for summary judgment.[3] The Court held a hearing on May 27, 2015.

II. Analysis

FOIA requires all agencies to promulgate regulations (1) specifying applicable fees for processing requests and (2) establishing guidelines for determining when fees should be waived or reduced. 5 U.S.C. § 552(a)(4)(A)(i).[4] Congress incorporated fee waivers and reductions into FOIA so that "fees [would] not be used as an obstacle to disclosure of requested information." Eudey v. Cent. Intelligence Agency, 478 F.Supp. 1175, 1177 (D.D.C. 1979). Courts review agency decisions on requester status and fee waiver requests through a " de novo review of the record" that was before the agency. Cause of Action v. Federal Trade Comm'n, 961 F.Supp.2d 142, 153 (D.D.C. 2013); accord 5 U.S.C. § 552(a)(4)(A)(vii).

There are three levels of fees that a FOIA requester may be charged. If records are requested for a commercial use, the agency may charge for searching for, reviewing, and duplicating them. 5 U.S.C. § 552(a)(4)(A)(ii)(I). If records are not sought for commercial use, the fees must be limited to reasonable charges for searching and duplicating. Id . § 552(a)(4)(A)(ii)(III). And if the requester is an educational or non-commercial scientific institution, or a representative of the news media, the fees are further reduced, as the agency may only charge for duplicating. Id . § 552(a)(4)(A)(ii)(II). In order to determine which category applies, the agency looks to the activities of the requester and its likely use of the records. See Elec. Privacy Info. Ctr. v. Dep't of Def., 241 F.Supp.2d 5, 12 (D.D.C. 2003) (holding that a requester's history of publishing unique works was more than enough to justify news media status). Plaintiffs contest ICE's refusal to classify them as representatives of both an educational institution and the news media.

A. Educational Institution Status

Long and Burnham contend that they should have been charged the reduced processing fees set for educational institutions. DHS regulations define an "educational institution" to include "an institution of undergraduate higher education [or] an institution of graduate higher education... that operates a program of scholarly research." 6 C.F.R. § 5.11(b)(4). To be classified in this category, "a requester must show that the request is authorized by and is made under the auspices of [an educational] institution and that the records are not sought for a commercial use but are sought to further scholarly research." Id . Office of Management and Budget ("OMB") guidelines-to which agency regulations must conform, 5 U.S.C. § 552(a)(4)(A)(i)-provide the following example to guide agencies in determining whether professors qualify for "educational" status:

[A] request from a professor of geology at a State university for records relating to soil erosion, written on letterhead of the Department of Geology, could be presumed to be from an educational institution. A request from the same person for drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to ...

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